Dismissed

Salini V.S v. Union of India

Kerala HC2 Dec 2021WA/1560/2021

Case brief

AI extract

What is this about?

Landowners challenged acquisition for highway widening on alignment grounds. The court held that Section 3C confines the competent authority to objections concerning use of the land, not alignment. Forwarding objections to the Project Director did not require awaiting his decision. The writ appeal was dismissed.

What the court decided

AI extract

Salini V.S Vs Union of India — Land Acquisition | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 2ND DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943

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WA NO. 1560 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 14782/2021 OF HIGH COURT OF KERALA

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APPELLANTS/PETITIONERS:

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1SALINI V.S
AGED 64 YEARS, W/O.LATE T.G JAYAPRAKASAN,
RESIDING AT THAMBIPARAMBIL, CHERIYAPPILLY,
N.H KAITHARAM P.O, NORTH PARAVUR,
ERNAKULAM PIN 683 519.

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2JOLLY A.C
AGED 58 YEARS, W/O. LATE T.G VIJAYAN,
RESIDING AT THAMBIPARAMBIL, CHERIYAPPILLY JUNCTION,
KAITHARAM P.O, NORTH PARAVUR, ERNAKULAM, PIN 683 519.

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3RAGHUVARAN T.G
AGED 73 YEARS, S/O. GOPALAN T.V,
THAMBIPARAMBIL, BMRA 85A, BALAKRISHNA MENON ROAD,
ANCHUMANA, EDAPALLY, KOCHI, PIN 682 024.

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4KALADHARAN T.G
AGED 66 YEARS, S/O. GOPALAN T.V,
THAMBIPARAMBIL, C.R.R.A 133, CHAKKUNGAL ROAD,
PALARIVATTOM, KOCHI PIN 682 025.

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BY ADVS.
ABRAHAM VAKKANAL (SR.)
PAUL ABRAHAM VAKKANAL
VINEETHA SUSAN THOMAS
ROHITH C.

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RESPONDENTS/RESPONDENTS:

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1UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF ROAD TRANSPORT AND HIGHWAY TRANSPORT
BHAWAN, 1, PARLIAMENT STREET, NEW DELHI 110 001.

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2THE PROJECT DIRECTOR
NH 66 DEVELOPMENT PROJECT,
(KAPPIRIKKAD-EDAPPALLY SECTION)
MAVELIPURAM, KAKKANAD, ERNAKULAM 682 030.

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3 THE SPECIAL DEPUTY COLLECTOR LAND ACQUISITION NH 66, NORTH PARAVUR, ERNAKULAM 683 513.

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DR. K.P.SATHEESAN(SR),
SRI. K.P.HARISH, SR GP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
02.12.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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“C.R.”

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JUDGMENT

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Dated this the 2^nd day of December, 2021

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Shaji P. Chaly, J.

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Petitioners in W.P.(C)No.14782 of 2021 have filed the appeal challenging the judgment of the learned single Judge dated 13.10.2021, whereby the following reliefs sought for in the writ petition are declined and the writ petition was dismissed:

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“i. To issue a Writ of Certiorari or other appropriate Writ, order or direction quashing the Ext P28 and P16 to P18 (a), P32 to the extent it affected the properties of the Petitioners, being illegal, malafide, unjust, irrational and unreasonable.

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ii. To declare that the entire acquisition proceedings in questions as far as the petitioners' properties are concerned, are illegal, irrational and unenforceable.

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iii. To issue a writ of mandamus or other appropriate writ or direction, commanding respondents not to proceed with petitioners' properties, as the proceedings are dehors the Act, malafide and illegal.”

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Brief material facts for the disposal of the appeal are as

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follows:

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In the writ petition the basic contention advanced by the appellants is that the alignment for widening NH-66 from chainage 405+700 to 409+100 (about 400 meters) within the Kapprikkad – Edappally section is illegal. It is the case of the appellants that it is the third time in the recent past appellants’ properties are sought to be acquired and in the present acquisition, the dwelling houses and commercial buildings are also sought to be acquired. The paramount contention advanced by the appellants is that the action of the respondents are arbitrary, malafide and discriminatory, avoiding the green field vacant plots on the western side which was the earlier notified route for acquisition. It is further submitted that as per the said earlier 2018 notification issued under Section 3A of the National Highways Act, 1956 ie. Exhibit P2, the alignment was mostly through the green field wherein only three houses on the western side would be affected. However, the said notification was

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allowed to be lapsed deliberately, and a new 3A notification ie., Exhibits P3 and P4 are issued in the year 2020 excluding the green fields and including the dwelling houses and commercial buildings of the appellants and others, numbering about 21.

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According to the appellants, when objections were raised before the Special Deputy Collector (Land Acquisition), NH 66, North Paravur, Ernakulam District – the third respondent, by the affected persons, he has stated that he has no power to decide on alignment and referred the issue to the 2nd respondent Project Director, but in turn the 3rd respondent, rejected the objections of appellants 1 to 3 stating that already a decision is taken in respect of the objection. According to the appellants, when similar objections against the alignment were raised by the affected parties against Exhibit P2 earlier notification, the stand of the Special Deputy Collector – the third respondent was different. It is predominantly submitted that it is clear from Exhibit

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P31(b) notes, the third respondent recommended change of alignment and it was accepting the same only the earlier alignment has been changed and present Exhibit P3 notification under Section 3A is issued. According to the appellants, the present alignment drastically affects the residential buildings of the appellants. Therefore, it was contended that, it was without allowing or disallowing the objections submitted by the appellants under Section 3C in regard to the alignment that the third respondent – Special Deputy Collector has taken the decision which is erroneous and mala fide.

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That apart, it was contended that the Special Deputy Collector has referred the issue raised by the petitioner to the Project Director and having made such a reference, the Special Deputy Collector was not at liberty to take a decision in the matter. Therefore, the submission made by the appellants is that the conduct of the Special Deputy Collector would go into the roots of the matter and violate the

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principles of the law laid down by the Apex Court in its various

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judgments in regard to the provisions of the National Highways Act, 1956.

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The learned single Judge, after taking into account the rival submissions and the objection filed by the Special Deputy Collector refuting the allegations and contentions, has arrived at the conclusions holding that the Special Deputy Collector is bound to consider any objection raised by any aggrieved person in accordance with the provisions of Section 3C of Act 1956 alone. In order to have a fair understanding of the findings rendered by the learned single Judge, the relevant portion of the judgment is extracted:

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“10. Sri.Abraham Vakkanal, learned Senior Counsel, opened his submissions vehemently arguing that, on the intervention of the 3rd respondent - CALA, the alignment had been altered several times in the past; but that when it came to the objections of his clients, said Authority refused to accede to it, thus causing the Government of India to issue a statutory notification under Section 3-D of the NH Act. He pointed out several instances from the plethora of documents on record to impress upon me that suggestions were made by the CALA with respect to the alteration of the alignment earlier proposed and that Government of India had acted upon them, thus leading

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to the present notification under Section 3-D of the NH Act. He predicated that, therefore, the CALA is still competent to change the alignment of the proposed Highway, particularly if there are vitiating factors - as have been pointed out by the petitioners, involved in the publication of the Section 3-D notification. The learned Senior Counsel, therefore, reiteratingly prayed that this writ petition be allowed and his clients' objections be directed to be properly reconsidered by the CALA; and to consequently order the Government to modify the Section 3-D notification appropriately.

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Dr.K.P.Satheesan, learned Senior Counsel appearing for the NHAI, countered the afore submissions of Sri.Abraham Vakkanal, saying that, as is apodictic from Section 3-D of the NH Act, when the Central Government declares by notification in the official Gazette that the lands proposed for acquisition should be acquired for the purposes mentioned in Section 3-A thereof, they shall stand vested absolutely in the said Government free of all encumbrances. He argued that, therefore, upon the notification under Section 3-D of the NH Act being published by the Government of India, it becomes absolute; and that neither can it be altered by any Authority, nor called into question by anyone, including the petitioners.

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Dr.K.P.Satheesan then proceeded to expatiate his contentions showing me that, before the Section 3-D notification is issued, the CALA is statutorily enjoined to consider every objection from the touchstone of the provisions of Section 3-C of the NH Act; and that it is only when such objections are found to be without merit or liable to be rejected, that the Central Government issues the notification under Section 3-D. He thus retiringly contended that once the final notification is issued by the Government under Section 3-D of the NH Act, the CALA is rendered functus officio within the scope of Section 3-C

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of the NH Act and will not obtain any competence to consider any cause relating to the acquisition or alignment of the Highway on any ground thereafter.

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Dr.K.P.Satheesan further submitted that, even as per Section 3-C of the NH Act, the jurisdiction of the CALA is confined to assess whether use of the land sought to be acquired would be for the purpose or purposes mentioned in Section 3-A of the NH Act. He argued that, therefore, even at the stage where objections are considered by the CALA, he cannot alter the alignment, but can solely evaluate whether the lands are required for the purposes as are enumerated in Section 3-A of the NH Act. He accused that, however, the attempt of the petitioners herein is to alter the alignment itself, which is beyond the CALA; and thus prayed that this writ petition be dismissed.

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The learned Assistant Solicitor General of India, Sri.P.Vijayakumar and the learned Government Pleader Smt.Reshmi Thomas, adopted the submissions of Dr.K.P.Satheesan as afore and argued that no cause can be now projected by the petitioners against the alignment, which has become final. They also, therefore, prayed that this Court may not enter into the merits of the objections raised by the petitioners against the alignment of the Highway, because, after the notification under Section 3-D of the NH Act has been published – which is admitted - this writ petition is not maintainable.

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As I proceed to assess and answer the afore rival contentions, I am cognizant that, though this Court has not yet spoken specifically on the power or competence of the CALA qua the alteration of the alignment of a National Highway, some judgments have touched upon it peripherally, but not answered it affirmatively because this issue was never raised directly therein.

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As is unmistakable from the arguments of Sri.Abraham Vakkanal, learned Senior Counsel, the

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petitioners singularly contend that their lands ought not have been acquired because the present alignment is faulty and scientifically erroneous. They assert that prior to the issuance of the notification under Section 3-D of the NH Act by the Government of India, the CALA had made various recommendations for alteration of the alignment, which have all been accepted but that their request for change of alignment has been rejected, citing that said Authority obtains no power to do so.

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Pertinently, Sri.Abraham Vakkanal is right in part; but, ironically, it is on account of the logic impelled by his clients that this Court will be now forced to find against them.

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I say as above because, going by the statutory Scheme of Section 3-D of the NH Act, after the CALA considers all the objections under Section 3-C thereof, they are obliged to submit a report to the Central Government, based on which, said Government then issues the final notification under it.

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Axiomatically, therefore, if the CALA, is to find any objections preferred before them - under Section 3-C of the NH Act - to be genuine and to thus conclude that a land included in the original alignment is not required for the purposes mentioned in Section 3-A of it, then their report will certainly record so, and will have to be taken into account by the Government of India, while the Section 3-D notification is issued, which may entail or otherwise the alteration of the original proposal or the alignment. Should any change to the proposal or alignment happen for such reason, it is not because the CALA recommended so, but solely as an after – action to the exclusion of certain lands found by the said Authority to be unfit or unnecessary within the criteria under Section 3-A of the NH Act. This may sometimes happen as a consequence and there is nothing unusual about this, because this is how the statutory mandate provides and

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operates.

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That said, the compelling issue in this case is whether the CALA was justified in rejecting the petitioners' objections, through the impugned orders, saying that he has no jurisdiction to alter the alignment.

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An epigrammatic survey of the design of the NH Act would throw an insight into this query.

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Section 3-A of the NH Act provides that when the Central Government is satisfied that it is for a public purpose that any land is required for the building, maintenance, management or operation of a National Highway or part thereof, it may, by notification in the official Gazette, declare its intention to acquire such land, giving a brief description in the notification itself. The Section further provides that this notification shall be published in two local newspapers, one of which shall be in the vernacular language. Once the said notification is issued, any person interested in the land obtains the statutory right to make his objections within 21 days of its publication, as regards use of the land for the purpose or purposes mentioned in that Section. This is specifically stipulated so in Section 3-C of the NH Act.

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The words “object to the use of the land for the purpose or purposes mentioned in that SubSection” appearing in Section 3-C of the NH Act, singularly refers to Section 3-A of it and has great relevance to the controversy projected in this case.

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As I have said above, the specific argument of the learned Senior Counsel, Sri.Abraham Vakkanal, is that every objection to be made by a person interested in the land will have to be considered by the CALA and this includes even the technical feasibility of the alignment and its alteration - if it becomes so necessary. However, going by the prescriptions of Section 3-C, it is irrefragable that CALA can only consider objections with respect to the use of the land for the purpose or purposes

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mentioned in Section 3-A of the NH Act.

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Returning to Section 3-A of the NH Act, it is perspicuous that the purposes mentioned therein are with respect to the construction of a building, maintenance, management or operation of a National Highway or part thereof and nothing else. It is thus apodictic that any objection to be preferred under Section 3-C of the NH Act must fall within the delineated parameters of Section 3-A thereof and anything beyond that cannot be considered by the CALA.

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To paraphrase, if an objection is raised before the CALA as regards the alignment per se, it will not be possible for him to consider it, because his competence is confined to decide whether the land sought to be acquired is required for the building, maintenance, management or operation of a National Highway or part thereof. It is only if an objector is able to convince them that the land belonging to him/her, or over which he/she makes a claim, is not required for any such purpose, can the CALA accept it and then report accordingly to the Government of India, which may or may not, then, consequentially cause a change in the alignment.

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It is thus evident that even when the CALA makes a report to the Government as per their duty under Section 3-D of the NH Act, they does not and cannot recommend a change of the alignment, but only that certain lands or extents be excluded, they being not required for the purposes under Section 3-A of the NH Act.

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Viewed from that perspective, it becomes irrefutable that the submissions of the learned Senior Counsel, Sri.Abraham Vakkanal, cannot appeal to this Court, since, by no sweep or stretch can the CALA intermeddle with the process of alignment of a National Highway or its finalization.

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This is also for the reason – as is well known and

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accepted – that a Road/Highway alignment design process is guided by comprehensive technical literature and data search; as also by various carefully identified priorities, including environmental and social dimensions, leading to multifarious decisions at multiple levels. This is a complex and intensively iterative process and the degrees of complexity increase depending upon the topographical and geological attributes. To say differently, this is a matter for the experts and not for the CALA, who is generally and often only a Revenue Official and not one with technical training or expertise in such matters.

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When I so conclude and then examine the impugned orders of the CALA, I cannot find the conclusions therein to be in error because it was irreproachably held therein that they are only enjoined to consider whether the lands of the petitioners are required for the purposes mentioned in Section 3-A of the NH Act, but cannot, in any manner, decide upon the alignment, as has been requested by them.

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In any event of the matter, once the final notification has been issued by the Government under Section 3-D of the NH Act, the CALA loses even the competence to make reports before the said Government.

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In summation, the contentions of the petitioners urged in this writ petition cannot obtain the imprimatur of this Court; and I, consequently, dismiss them.

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This writ petition is thus ordered.”

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It is thus challenging the legality and correctness of the

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findings rendered by the learned single Judge, the appeal is preferred.

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We have heard, learned Senior Advocate Sri.Abraham Vakkanal appeared for the appellants, assisted by learned counsel Sri.Paul Abraham Vakkanal; learned Central Government Counsel Smt.Mini Gopinath; learned Senior Advocate Dr.K.P.Satheesan for the Project Director, NH 66 Development Project, Kakkanad, Ernakulam and learned Senior Government Pleader Sri.K.P.Harish for the Special Deputy Collector, Land Acquisition, and perused the pleadings and materials on record.

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The paramount contention advanced by the learned Senior Counsel appearing for the appellants is that the learned single Judge was not correct in holding that the Competent Authority for Land Acquisition (CALA) has no authority to decide on the objection to alignment under Section 3C of Act 1956. According to the learned Senior Counsel, wide powers are given to CALA to decide on any objections under Section 3C that is to say, if necessary after making further enquiry if any as the competent authority

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thinks, which power includes, the power to refer the issue to Project Director or any other expert, to get opinion as deems

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necessary to allow or disallow such objections. It was also contended that in the present case, the competent authority

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is the Special Deputy Collector – the third respondent and he is the supreme authority in the area specified to deal with all aspects relating to acquisition including the power to decide on objections for and on behalf of the Government. That apart, it was contended that no authority is given power to deal with any aspects relating to acquisition and it is not specified anywhere that the competent authority has no power to decide the objections on alignment.

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Therefore, the sum and substance of the contention advanced by the learned Senior Counsel is that when wide powers are given under Section 3C(2) to decide on objections relating to the use of the land for the purpose or purposes mentioned in Section 3A(1) placing restrictions on such powers stating that CALA cannot decide certain objections in

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regard to alignment will amount to unlawful restrictions on the powers conferred on CALA by Act 1956. That apart, it was pointed out that being a creature of the statute, CALA is expected to function within the parameters prescribed in the statute and exercise the powers conferred therein. It was further contended that it is not the legislative intent to shut out any sort of objections against alignment before any authority and therefore, CALA is given power to decide on any objections relating to use of the land for the purpose or purposes mentioned in Section 3A(1), which power naturally includes the power to decide on objections as to whether the appellants’ land is required for the use of widening the Highway. Other contentions were also raised by the learned Senior Counsel.

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Learned Senior Counsel appeared for the Project Director, learned Senior Government Pleader for the State Officials and the Counsel for the Union of India advanced arguments fully supporting the judgment of the learned

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Single Judge and relying upon the provisions of Act 1956. The paramount and basic submission was that, the competent authority is duty bound to consider the objections raised in terms of the provisions of Act 1956, and the said authority is not empowered to travel beyond the scope of the provisions of Act 1956. That apart, it was contended that merely because strange objections raised by the appellants were not considered by the competent authority that will not make the order passed by the competent authority illegal and arbitrary especially due to the fact that the competent authority is expected to exercise his power in accordance with the provisions of Act 1956. It was further submitted by the learned Senior Government Pleader that going by the objections raised by the appellants, it is clear that the appellants have not objected to the acquisition of their properties but they were objecting to the alignment and since there is no power vested with the competent authority to consider an objection to the alignment under Section 3C of

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Act 1956, the objection was eschewed by the competent authority which is in accordance with law. That apart, it was contended by the learned Senior Government Pleader that a copy of the objection raised by the appellants alone was forwarded to the Project Director and the competent authority has never forwarded the matter for consideration of the Project Director as contended by the appellants. Learned Senior Government Pleader has also taken us through the vernacular version and English version of Exhibit P16 impugned order passed by the competent authority.

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We have evaluated the rival submissions made across the Bar. The National Highways Act is an Act to provide for the declaration of certain Highways to be National Highways and for matters connected therewith. Section 3A(1) enables the Central Government if it 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, to issue notification in the Official

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Gazette, declaring its intention to acquire such land. Subsection (2) thereof makes it clear that every notification under sub-section (1) shall give a brief description of the land and as per sub-section (3) 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. The said provision makes it explicit that a clear cut procedure is prescribed before any acquisition is actually made by the competent authority. Section 3C of Act 1956 deals with hearing of objections, which reads thus:

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“3C. Hearing of objections.—(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section.

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(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.

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Explanation.—For the purposes of this sub-section, “legal practitioner” has the same meaning as in clause (i)

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of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1.961).

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(3) Any order made by the competent authority under sub-section (2) shall be final.”

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Section 3C(1) makes it clear that what is contemplated therein is an objection to the use of the land for

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the purpose or purposes mentioned in sub-section (1) of Section 3A. Therefore, the competent authority is vested with powers only to consider the objection in regard to the use of the land and nothing else. Here is a case where the appellants have not objected to the acquisition of the land but they have in fact objected to the alignment fixed for widening of the National Highway.

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A reading of the provisions extracted above, would make it clear that so far as the objection with respect to alignment is concerned, the competent authority is not vested with any powers and, therefore, if any objection is raised by the appellants in the objections filed in regard to the notification issued under Section 3A for the acquisition of the land the competent authority cannot render any decision with

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respect to the same. Therefore, when the competent authority is not vested with any powers under law to do a particular thing, it is at liberty to ignore any such objection raised, and refuse adjudication accordingly. Which thus means clear inhibitions are prescribed under Section 3C of Act 1956 in regard to the power to be exercised by the competent authority in the matter of acquisition of the land.

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In fact the issue with respect to the manner in which the objections are to be adjudicated, was considered by the Apex Court in Rameshwar Prasad & Others v. Union of India & Another [(2006) 2 SCC 1] , wherein it was held that a person entrusted with discretion must, so to speak, direct himself properly in law; he must call his attention to matters which he is bound to consider; he must exclude from his consideration matters which are irrelevant to what he has to consider; if he does not obey those rules he may truly be said to be acting unreasonably; there may be something so absurd that no sensible person could ever dream that it lay within the powers

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of the authority and it is an unwritten rule of law, constitutional and administrative, that whenever a decisionmaking function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.

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In Ganesh Bank of Kurundwad Ltd. and Others Vs. Union of India and Others [(2006) 10 SCC 645] , a similar question was considered by the Apex Court and held that, where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference and judicial restraint must be shown while making a judicial review in administrative matters. It was further held therein that the duty of the court is to (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers; (c) committed an error of law; (d)

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committed breach of the rules of natural justice; and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. It was also held that illegality means, the decision maker must correctly understand the law that regulates his decision making power and must give effect to it.

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In our considered opinion, the issues raised by the appellants in the appeal are basically covered by the aforesaid judicial pronouncements of the Apex Court. As we have pointed out above, when the competent authority was not vested with powers to consider the question with respect to the alignment fixed for the National Highway, it had no obligation under law to pass any orders on the objection with respect to the alignment. As we have also pointed out earlier, in the objection filed by the appellants, the acquisition of the land was never objected, but on the other hand, it is stated in the objection that they have no objection in the matter of acquisition of the land. We are also of the clear opinion that

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the competent authority has not referred the issue with respect to the alignment raised by the appellants to the Project Director but in his order he has only stated that a copy of the objection of the appellants is forwarded to the Project

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Director and if that be so, the competent authority is not bound to wait for any orders or dicta from the Project Director. Moreover, there is no provision at all in the National Highways Act, 1956 empowering the competent authority to make any reference to the Project Director any matter of whatsoever nature.

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Even though the learned counsel for the appellants have heavily relied on the judgment of the Apex Court in Union of India v. Kushala Shetty & Others [(2011) 12 SCC

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69] , we are of the considered opinion that the appellants are not entitled to get any benefits out of the principles of law laid down by the Apex Court in the said judgment. Paragraph 24 of the said judgment would be relevant to the context and it reads thus:

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“24. The Competent Authority did advert to the substance of objections, the details of which have been incorporated in Annexure P-3 filed before this Court. The concerned officer rejected the same by observing that the land proposed for acquisition is necessary for widening the existing National Highways into four lanes. If the consideration made by the Competent Authority is judged in the backdrop of the fact that a Special Purpose Vehicle was incorporated with the name New Mangalore Port Road Company Limited for implementation of the project known as New Mangalore Port Road Connectivity Project from Surathkal to Nantoor and B.C.Road to Padil along with bypass from Nantoor to Padil, it is not possible to castigate the proved reasons recorded by the Competent Authority for rejecting the objections.”

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That apart, in similar situation, we had occasion to consider the provisions of Sections 3A and 3C of Act 1956 in

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Rameshan D. & Others v. State of Kerala & Others [ILR 2019

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(4) Kerala 513] and after conducting an elaborate survey of the judgments of the Apex Court and various other decisions, similar contention raised with respect to the alignment was declined, and the writ appeal was also dismissed. Likewise, in

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the judgment in V. Varghese v. Union of India & Others in W.A.No.792 of 2021 dated 30.07.2021, a similar question was considered and it was held as follows at paragraph No.4:

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“4. The learned Single Judge after taking into account the contentions put forth by the petitioner and basically relying upon the judgment of the Hon'ble Apex Court in Union of India v. Dr. Kushala Shetty and others [ (2011) 12 SC 69] and assimilating the legal situations contained under Sections 3-A, 3-C and 3-D of the National Highways Act, 1956 held that the change in alignment departing from the alignment of the year 2009, and the alleged hardships caused to the petitioner on account of the acquisition is not legally sustainable in view of the provisions contained under Section 3-C(1), and that such a contention cannot be entertained as it is not an objection to the user of the land as contemplated in the said provision. Learned Single Judge has also found that the feasibility of the alignment cannot be gone into by a writ court, exercising the powers under the writ jurisdiction.”

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Matters being so, in a judicial review under Article 226 of the Constitution of India, a writ court will have to restrain itself to render its findings as to whether the competent authority has considered the objections raised in accordance with the provisions of Act 1956. After analysing the judgment of the learned single Judge, we are of the clear opinion that the learned single Judge was right in holding that the power of the competent authority under Section 3C is confined to the aspects that are mentioned therein.

¶158

Taking into account all the above factual and legal

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W.A.No.1560 of 2021

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circumstances, we have no hesitation to hold that the appellants have not made out any case of jurisdictional error or other legal infirmities justifying our interference with the judgment of the learned single Judge in an intra court appeal filed under Section 5 of the Kerala High Court Act.

¶162

Needless to say, writ appeal fails. Accordingly, it is dismissed.

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Pending interlocutory applications, if any, shall stand closed.

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Sd/-

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S.Manikumar Chief Justice

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Sd/-

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Shaji P.Chaly Judge