Partly allowed

Travancore Devaswom Board v. Union of India

Kerala HC29 Aug 2022WP(C)/14183/2021

Case brief

AI extract

What is this about?

The High Court set aside an order by the Special Deputy Collector rejecting a petitioners' request to shift a highway alignment to save temple structures. The court held the order violated natural justice by failing to consider submitted Google images and evidence. It directed the Ministry of Road Transport to nominate an officer to reconsider the objections after a personal hearing.

What did the court decide?

The order dated 15.05.2021 of the Special Deputy Collector was set aside. The Secretary, Ministry of Road Transport and Highways, was directed to nominate a competent officer to reconsider objections

Travancore Devaswom Board Vs Union of India — Land Acquisition | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT

¶2

THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

¶3

¶4

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 29TH DAY OF AUGUST 2022 / 7TH BHADRA, 1944
W.P.(C)NO.14183 OF 2021

¶5

PETITIONER:-

¶6

TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD
QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM-695 011.
BY ADV SHRI.G. BIJU, SC, TRAVANCORE DEVASWOM BOARD

¶7

RESPONDENTS:-

¶8

1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, PARIVAHAN BHAVAN,

¶9

PARLIAMENT STREET, NEW DELHI-110 001.

¶10

2 NATIONAL HIGHWAYS AUTHORITY OF INDIA,

¶11

G5 & G6, SECTOR 10, DWARAKA, NEW DELHI-110 075, REPRESENTED BY ITS CHAIRMAN

¶12

3 THE PROJECT DIRECTOR NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, THIRUVANANTHAPURAM,

¶13

T.C.36/414(3), NEAR NSS HIGHER SECONDARY SCHOOL,
PALKULANGARA, PETTA (PO) THIRUVANANTHAPURAM-695
024.

¶14

4 THE SPECIAL DEPUTY COLLECTOR/COMPETENT AUTHORITY, LAND ACQUISITION (NH), KUDAPPANAKUNNU (PO), THIRUVANANTHAPURAM-695 043,

¶15

5 THE DISTRICT COLLECTOR, COLLECTORATE, KUDAPPANAKUNNU (PO) THIRUVANANTHAPURAM-695 043.

¶16

BY ADVS.
SMT.MINI GOPINATH, CGC
E.C.KURIAKOSE
B.G.BIDAN CHANDRAN(K/470/1991)
LEJO JOSEPH GEORGE(KAR/74/2017)

¶17

SR.G.P. SRI.S. RAJMOHAN

¶18

¶19

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶20

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.08.2022, ALONG WITH W.P.(C)NOS.14347 AND 17244 OF 2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

¶22

W.P(C)Nos.14183 of 2021,

¶23

14347 of 2021 & 17244 of 2021

¶24

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT

¶25

THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN
&

¶26

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

¶27

MONDAY, THE 29TH DAY OF AUGUST 2022 / 7TH BHADRA, 1944
W.P.(C)NO.14347 OF 2021

¶28

PETITIONERS:-

¶29

1THIRUVARATTUKAVU DEVI (PERPETUAL MINOR)
REP. BY ASOK KUMAR K. (DEVOTEE), MUTTATTIL VEEDU,
KOLLAMPUZHA, ATTINGAL P.O., THIRUVANANTHAPURAM-
695101.

¶30

2RENJITH R.,
R.R. BHAVAN, KOLLAMPUZHA, ATTINGAL P.O.,
THIRUVANANTHAPURAM-695101.
BY ADVS.
C.R.REGHUNATHAN
B.HARRYLAL

¶31

RESPONDENTS:-

¶32

1UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF ROAD
TRANSPORT & HIGHWAYS, PARIVAHAN BHAVAN, PARLIAMENT
STREET, NEW DELHI-110001.

¶33

2NATIONAL HIGHWAY AUTHORITY OF INDIA
(NHAI), G-5&6, DWARAKA SECTOR-10, NEW DELHI-
110075, REPRESENTED BY ITS CHAIRMAN.
3SPECIAL DEPUTY COLLECTOR & COMPETENT AUTHORITY
(LANH),
OFFICE OF LA (NH) OFFICE, CIVIL STATION,
COLLECTORATE, KUDAPPANAKKUNNU P.O.,
THIRUVANANTHAPURAM-695043.

¶34

4ADDITIONAL TAHASILDAR, LA (NH),
OFFICE OF LA (NH) OFFICE, CIVIL STATION,
COLLECTORATE, KUDAPPANAKKUNNU P.O.,
THIRUVANANTHAPURAM-695043.

¶35

5TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD HEAD
QUARTERS, NANTHANKODE, KAWDIAR P.O.,
THIRUVANANTHAPURAM-695003.

¶36

6 SUPERINTENDING ARCHAEOLOGIST, ARCHAEOLOGICAL SURVEY OF INDIA, THRISSUR CIRCLE,

¶37

¶38

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶39

PURATATTVA BHAVAN, KSHB FLATS, GREEN VALLEY,
PULLAZHI P.O., THRISSUR-680012.

¶40

7 THE DIRECTOR, DIRECTORATE OF ARCHEOLOGY, SUNDARAVILASAM PALACE, FORT THIRUVANANTHAPURAM-695023.

¶41

8ADDL.R8. THE PROJECT DIRECTOR,
NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT
IMPLEMENTAION UNIT, THIRUVANANTHAPURAM, T.C.
36/414(3), NEAR NSS HIGHER SECONDARY SCHOOL,
PALKULANGARA, PETTA P.O., THIRUVANANTHAPURAM-
695024

¶42

ADDITIONAL R8 IMPLEADED AS PER THE ORDER DATED
20.10.2021 IN I.A.01/2021 IN WP(C) 14347/2021.
BY ADVS.
SMT.MINI GOPINATH, CGC
SHRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD
E.C.KURIAKOSE

¶43

OTHER PRESENT:

¶44

SRI S.RAJMOHAN - SR GOVERNMENT PLEADER

¶45

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

¶46

29.08.2022, ALONG WITH W.P.(C)NOS.14183 AND 17244 OF 2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶47

¶48

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶49

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶50

THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

¶51

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

¶52

MONDAY, THE 29TH DAY OF AUGUST 2022 / 7TH BHADRA, 1944
WP(C) NO. 17244 OF 2021

¶53

PETITIONERS:-

¶54

1 H.H. GOURI PARVATHI BAYI

¶55

AGED 79 YEARS

¶56

W/O.CRR VARMA, KOWDIAR PALACE, THIRUVANANTHAPURAM
- 695003.

¶57

2 H.H. GOURI LAKSHMI BAYI

¶58

AGED 74 YEARS W/O.R.R VARMA, KOWDIAR PALACE, THIRUVANANTHAPURAM

¶59

- 695003.

¶60

BY ADVS.

¶61

K.S.HARIHARAPUTHRAN

¶62

BHANU THILAK

¶63

RESPONDENTS:-

¶64

1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANDANCODE, THIRUVANANTHAPURAM - 695002.

¶65

2 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANDANCODE, THIRUVANANTHAPURAM - 695002.

¶66

3 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.

¶67

4 SPECIAL DEPUTY COLLECTOR

¶68

LA NH, THIRUVANANTHAPURAM - 695002.

¶69

5 UNION OF INDIA REPRESENTED BY MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, CENTRAL SECRETARIAT, NEW DELHI - 110001.

¶70

6 NATIONAL HIGHWAYS AUTHORITY OF INDIA

¶71

(MINISTRY OF ROAD TRANSPORT AND HIGHWAYS), PROJECT IMPLEMENTATION UNIT, TC 36/414(5), KOYIKKALVEEDU, KAVU LANE PALKULANGARA, THIRUVANANTHAPURAM -

¶72

¶73

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶74

695024, REPRESENTED BY PROJECT DIRECTOR, NHAI -
PIU-TVM.
BY ADVS.
SHRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD
SHRI.A.K. HARIDAS, CGC
E.C.KURIAKOSE

¶75

SR. GP.SRI.S.RAJMOHAN

¶76

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.08.2022, ALONG WITH W.P.(C)NOS.14347 AND 14183 OF 2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶77

¶78

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶79

“C.R”

¶80

JUDGMENT

¶81

Since a common issue is raised, these writ petitions are heard together and are disposed of by this common judgment.

¶82

W.P.(C)No.14183 of 2021:- The Travancore Devaswom

¶83

Board represented by its Secretary has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P2 notification dated 28.01.2020 issued by the 1^st respondent Central Government, Ministry of Road Transport and Highways (MoRTH) under Section 3A of the National Highways Act, 1956 (NH Act), insofar as it relates to the acquisition of property of Thiruvarattukavu Devi Temple in Sy. No.642 of Attingal Village, which is a temple under the management of the Travancore Devaswom Board and Ext.P12 order dated 15.05.2021 of the 4^th respondent Special Deputy Collector and Competent Authority, Land Acquisition (National Highway), Thiruvananthapuram. The petitioner has also sought for a writ of mandamus commanding the respondents to slightly shift the alignment of the proposed Attingal Bypass in National Highway-66 (NH-66) in such a way that the temple structures of Thiruvarattukavu Devi Temple are not affected; and a declaration that the ancient temple structures in

¶84

¶85

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶86

Thiruvarattukavu Devi Temple are liable to be protected to keep the remembrance of our ancient cultural heritage and to save the temple rituals.

¶87

2.1. Going by the averments in the writ petition, the

¶88

proposed acquisition of property for the formation of Attingal Bypass for the development of National Highway-66 from Kadambattukonam to Kazhakkoottam, between Ch.530+800 and Ch.530+900, will affect the ancient temple structures of Thiruvarattukavu Devi Temple, which are constructed more than 700 years back. The temple is under the management of the Travancore Devaswom Board, which is constituted under the Travancore-Cochin Hindu Religious Institutions Act, 1950, for the administration of temples and religious endowments, which were under the management of erstwhile Ruler of Travancore and the management of all institutions which are under the Devaswom Department. Thiruvarattukavu Devi Temple in Attingal, is an ancient temple under Varkala Group. Thiruvarattukavu Devi is ‘Paradevatha’ (family deity) of Travancore Royal Family and 'Adisthana Devatha' of Attingal Desom. The temple is more than 700 years old. 'Ariyittuvazhcha', which started centuries before, is still continued by Travancore Royal Family in the temple, in the

¶89

¶90

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶91

month of ‘Makaram’ every year, which is celebrated as the festival of Attingal Desom. It is a ten days long annual festival, during which period the members of Travancore Royal Family attend the temple and participate in the rituals. ‘Ariyittuvazhcha’ is performed on the 9^th day of the festival. The members of Travancore Royal Family arriving for the ritual 'Ariyittuvazhcha' will be seated in the ‘Pattupura’ in Thiruvarattukavu Devi Temple. The temple, which is constructed in Kerala Kshethra Vastusilpa style, is an ancient monument to be protected as a remembrance of our cultural heritage. Koyikkal Palace situated adjacent to the temple is being taken over by the Archaeological Department. The temple is situated on land having an extent of 3.55 Acres in Sy. No.642/1 of Attingal Village in Chirayinkeezhu Taluk. The document marked as Ext.P1 is the relevant extract of the settlement register of Attingal Village. The 1^st respondent issued Ext.P2 notification dated 28.01.2020 in Mathrubhumi daily dated 14.03.2020, under Section 3A(1) of the NH Act), for the acquisition of land for development of NH-66 from Kadambattukonam to Kazhakkoottam. As per Ext.P2, private land having an extent of 44.52 Ares in Survey No.642 of Attingal Village is under acquisition.

¶92

¶93

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶94

2.2. Earlier, in the years 2010, 2012 and 2018 similar notifications were issued by the 1^st respondent. Those notifications have lapsed. In the first notification published on 16.02.2010, there was no proposal for the acquisition of the temple property. In the second notification published on 27.03.2012, there was a proposal to acquire 14.28 cents of temple property outside the compound wall (chuttumathil) of the temple. The third notification, i.e., Ext.P3, was published on 08.06.2018, proposing to acquire 24.6 cents of temple property. Against the acquisition of temple property, the Travancore Devaswom Board submitted Ext.P4 objection dated 04.07.2016 and Ext.P5 objection dated 20.04.2017 before the 5^th respondent District Collector. Ext.P6 request dated 08.07.2019 was submitted before the State Government, which was followed by Ext.P7 objection dated 05.06.2020 before the 4^th respondent Special Deputy Collector and Competent Authority. The document marked as Ext.P8 is a sketch showing the alignment of the proposed Attingal Bypass on the temple property. ‘Kannimoola’, ‘Pattupura’, ‘Sreevelipatha’, ‘Anakkottil’, holy steps and the compound wall of the temple are included in the area proposed to be acquired. According to the petitioner, the damage and destruction that will be caused to the temple structures will deplete ‘Kshethra

¶95

¶96

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶97

Chaithanyam’. The destruction of ‘Kannimoola’, which is an auspicious point of the temple will amount to mutilation of the limbs of the deity. The destruction of the structures constructed as per ‘Vastusasthra’ will affect the sanctity and power of the deity. The breaking of ‘Sheevelipatha’ will affect the entire rituals of the temple. According to the petitioner, a slight shift from the present alignment, as shown in Ext.P8 sketch can save the temple structure. 2.3. The 4^th respondent issued notice to the petitioner to appear for a personal hearing scheduled on 19.06.2020, on Ext.P7 objection. The petitioner submitted Ext.P9 hearing notes. The 4^th respondent rejected the objections of the petitioner. The petitioner challenged the acquisition proceedings by filing W.P(C)No.13037 of 2020. The Travancore Royal Family and the Temple Advisory Committee of Thiruvarattukavu Devi Temple filed W.P.(C)Nos. 13371 of 2020 and 13683 of 2020. Those writ petitions were disposed of by Ext.P10 judgment dated 19.01.2021, by directing the 4^th respondent Special Deputy Collector and Competent Authority to consider the objections filed by the petitioner and others and also the stand of the National Highways Authority of India (NHAI) and its Project Director, before issuing a declaration under Section 3D of the NH Act, in respect of places covering

¶98

¶99

14347 of 2021 & 17244 of 2021

¶100

W.P(C)Nos.14183 of 2021,

¶101

Ch:530 + 800 and Ch:530 + 900, after affording an opportunity of being heard, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of that judgment. Till such a decision is taken by the Competent Authority under Section 3C of the Act, no further steps shall be taken in respect of the sector, viz., Ch:530 + 800 and Ch:530 + 900. The interim order passed in the writ petitions shall continue to be in force till such a decision is taken.

¶102

2.4. Pursuant to the directions contained in Ext.P10 judgment, the 4^th respondent issued notice to the petitioner and others regarding a site inspection scheduled on 19.02.2021. The petitioner Board, through its Assistant Devaswom Commissioner, Varkala, submitted Ext.P11 statement before the 4^th respondent, requesting a slight shift in the alignment to save the temple structures. According to the petitioner, the 4^th respondent, without considering the objections put forward by the petitioner and without ascertaining the actual position as to what happens if the alignment is slightly shifted to protect the temple structures, turned down that request in Ext.P12 order dated 15.05.2021, on the ground that, in the case of change of alignment, a handful of people will have to be displaced, who will be put to irreparable loss. Considering the

¶103

¶104

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶105

additional burden to the public exchequer and the urgency of land acquisition, the demand for alignment change was not feasible at that juncture. Hence the Competent Authority overruled the demand for any change in the alignment of Attingal Bypass.

¶106

2.5. According to the petitioner, a slight shifting of the alignment will not affect many residential buildings or cause an additional financial burden to the public exchequer, as contended by the NHAI and accepted by the Competent Authority to overrule the objections. If the alignment is shifted 20 meters to the left (away from the temple), 4 residential buildings will be excluded and 3 residential buildings will be additionally included in the stretch of 500 meters to and from the temple premises. By shifting the alignment as above, Kollampuzha Moorthy Temple will not be affected and one residential building can be saved. In order to substantiate the said contention, the petitioner has placed on record Ext.P13 google images of the stretch from Ch:530+100 to Ch:531+200 (1.2 Km) showing every 100-meter sketch.

¶107

2.6. In the writ petition it is alleged that the respondents have changed the alignment three times earlier, yielding to the pleasure of influential persons. The temple property was not affected as per the initial alignment. Subsequently, the alignment

¶108

¶109

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶110

was changed in phases, taking temple property and temple structures, in order to exempt private properties. The properties of influential persons are excluded in the present alignment between Kadambattukonam and Kazhakkoottam stretch. There were complaints in this regard and the 5^th respondent District Collector, Thiruvananthapuram conducted an inspection and submitted Ext.P14 note dated 20.06.2016, wherein it was found that the alignment was fixed in such a way as to exempt the property of a retired officer of the Revenue Department. According to the petitioner, the inspection and hearing conducted by the Competent Authority on 19.02.2021 was only a mere eye wash to show compliance with the directions contained in Ext.P10 judgment of this Court dated 19.02.2021. Though respondents 3 and 4 were convinced that the alignment can be slightly changed to save the temple structures without any additional financial burden, the same was not resorted to, evidently to save private properties.

¶111

W.P.(C)No.14347 of 2021:- The 1^st petitioner is

¶112

Thiruvarattukavu Devi, a perpetual minor, represented by a devotee by name, Ashok Kumar and the 2^nd petitioner is another devotee by name, Ranjith R., who is the Secretary of the Temple Advisory Committee, who had approached this Court earlier in

¶113

¶114

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶115

W.P(C)No.13683 of 2020, aggrieved by the acquisition proceedings, which would result in the demolition of critical structures of Thiruvarattukavu Devi Temple. The petitioners have filed this writ petition seeking a writ of certiorari to quash Ext.P12 order dated 15.05.2021 [Ext.P12 in W.P(C)No.14183 of 2021] issued by the 3^rd respondent Special Deputy Collector and Competent Authority, Land Acquisition (National Highway), Thiruvananthapuram. The petitioners have also sought for a writ of mandamus commanding the 3^rd respondent to modify Ext.P3 alignment, after making a minor shift towards the west, as in the alternate alignment shown in Ext.P10; and a writ of mandamus commanding respondents 6 and 7 to investigate into the archaeological history of Thiruvarattukavu Devi Temple and direct the 6^th respondent to consider Exts.P13 and P13(a) representations to declare and preserve the temple structures as a historical monument and heritage site. In the writ petition, it is stated that Thiruvarattukavu Devi Temple is an ancient temple with known history dating back to 1307 AD, which is part of the history of Kerala. The temple was constructed in 1307 AD following the adoption of a Princess in 1305 AD from Kolathunadu of Kannur in North Kerala, by the Travancore Royal Family. Thiruvarattukavu Devi Temple is the abode of the

¶116

¶117

W.P(C)Nos.14183 of 2021,

¶118

14347 of 2021 & 17244 of 2021

¶119

prime deity of Venadu (erstwhile Travancore Kingdom). Subsequent to the judgment of this Court in W.P(C)Nos.13037 of 2020, 13371 of 2020 and 13683 of 2020 (Ext.P8), a hearing was held at the chamber of 3^rd respondent Special Deputy Collector and Competent Authority, on 15.02.2021. The 3^rd respondent conducted a local inspection on 19.02.2021 and thereafter, a further hearing was conducted on 20.02.2021. During the personal hearing, the petitioners submitted Ext.P9 written submission dated 13.02.2021, Ext.P10 sketch of the alternate alignment and Ext.P11, P11(a) to P11(l) Google images [Ext.P13 in W.P(C)No.14183 of 2021]. In paragraph 18 of the writ petition, it is alleged that the 3^rd respondent conducted the personal hearing in a highly prejudicial manner, which created serious apprehensions in the minds of the petitioners. The 3^rd respondent, vide Ext.P12 proceedings dated 15.05.2021, overruled the petitioners’ objections and demand for a change of alignment on the ground that it is not feasible. In Ext.P12, the 3^rd respondent overlooked the historical importance of Thiruvarattukavu Devi Temple, which was emphasised by this Court in Ext.P8 judgment. The 3^rd respondent heavily relied on the report of the private consultancy, namely, M/s.SMEC, that 14 numbers of structures including residential buildings will have to be acquired if

¶120

¶121

W.P(C)Nos.14183 of 2021,

¶122

14347 of 2021 & 17244 of 2021

¶123

the existing alignment is altered, which is factually incorrect, as evident from Ext.P11, P11(a) to P11(l). The 3^rd respondent failed to pass a speaking order with the details of 14 structures including residential buildings, which would be affected if the alignment has to be altered. The 3^rd respondent relied on an unsubstantiated report of the private consultancy, though contradicting evidence was produced in Ext.P11, P11(a) to P11(l), which were made available before the said respondent, during the course of the hearing held on 15.02.2021 and 20.02.2021. In the writ petition, it is stated that researchers of history, paleophytes, and students had submitted several representations to the State authorities for proper preservation of all historical monuments in and around Attingal, including Thiruvarattukavu Devi Temple. Attingal History Lovers' Association submitted Ext.P13 representation dated 31.05.2021 before the 6^th respondent Superintending Archaeologist, Archaeological Survey of India, Kerala Circle, to take immediate steps for taking over all the historical monuments of Attingal, including Thiruvarattukavu Devi Temple. On 02.06.2021, the President of Attingal History Lovers' Association sent Ext.P13(a) e-mail to the 6^th respondent, requesting immediate action in the matter. Based on such a request, the 6^th respondent issued Ext.P14

¶124

¶125

W.P(C)Nos.14183 of 2021,

¶126

14347 of 2021 & 17244 of 2021

¶127

communication dated 04.06.2021 to the additional 8^th respondent Project Director requesting him to look into the matter and change the present alignment of Attingal Bypass to save the heritage structure.

¶128

On 23.07.2021, when W.P.(C)No.14183 of 2021 came up for consideration along with the connected matter, i.e., W.P.(C)No.14347 of 2021, this Court admitted the writ petitions on file. The learned Assistant Solicitor General of India (ASGI) took notice for the Union of India, the learned Standing Counsel for National Highways Authority of India took notice for the Project Director and the learned Government Pleader took notice for the official respondents. The service of notice on respondents 6 and 7 in W.P.(C)No.14347 of 2021 was dispensed with, for the time being. After considering the rival contentions, this Court granted an interim order staying all further proceedings for acquisition in terms of Section 3A(1) notification dated 28.01.2020 and Ext.P12 proceedings dated 15.05.2021 of the 4^th respondent. The said order reads thus:

¶129

“This is the second round of litigation on the very same subject matter as far as the petitioners are concerned. The Travancore Devaswom Board (TDB), the petitioner in W.P.(C)No.14183 of 2021 had earlier approached this Court by filing W.P.(C)No.13037 of 2020 on being aggrieved by the proposal in Ext.P2 notification

¶130

¶131

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶132

dated 28.1.2020 to have an extensive acquisition viz., more than one acre from the property, to be precise, 0.4452 hectares of the property comprised in Survey No.642 of Attingal Village, belonging to Thiruvarattukavu Devi Temple, a temple under TDB. The petitioners in the latter writ petition had also approached this Court earlier by filing W.P.(C)No.13683 of 2020 on the very same issues. A Division Bench of this Court, in which one among us (C.T. Ravikumar, J.) was a party, disposed of the said writ petitions as per Ext.P10 judgment in W.P.(C)No.14183 of 2021, with directions. It is the consequential proceedings issued subsequent to Ext.P10 judgment viz., No.B1.158/2021 dated 15.5.2021 of Special Deputy Collector, LA(NH), Thiruvananthapuram which is impugned in these writ petitions. 2. As a preliminary objection the learned Standing Counsel for the National Highways Authority of India raised a contention that entertaining the writ petitions by the Division Bench would result in denial of 'right to appeal' to the parties and as the acquisition is being effected exercising the power of eminent domain of the State it cannot be said to be a matter relating Devaswom. In this context, it is to be noted that the National Highways Authority of India is only a body corporate constituted under Section 3 of the National Highways Authority of India Act, 1988 (for short 'NHAI Act' only) for the development, maintenance and management of National Highways and for matters connected therewith or incidental thereto. Section 3A of the National Highways Act, 1956 (for short 'NH Act' only) would reveal that the power of eminent domain vests with the Central Government and Section 13 of 'NHAI Act' would reveal that acquisition of any land required by the authority may be acquired for the Authority under the provisions of the 'NH Act'. In fact, it is realising this position that in the impugned Ext.P12 order itself the National Highways Authority of India is described as the 'requisitioning authority'. Being the requisitioning authority National Highways Authority of India is not justified to take such

¶133

¶134

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶135

contentions based on the power of eminent domain of the Central Government. In the decision in Prayar Gopalakrishnan v. State of Kerala reported in [2018 (1) KLT 478] this Court held:“'Deva' means God and 'Swom' means Ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance.” In the said decision it was further held that Devaswom Board is a socio-religious trust constituted to manage the property of God comprising of Members nominated by the Government. In the decision in Kalanka Devi Sansthan v. Maharashtra Revenue Tribunal [AIR 1970 SC 439] the Hon'ble Apex Court held that when property is given absolutely for the worship of an idol it vests in the idol itself as a juristic person. We have referred to the decisions (supra) only to hold that the subject matter of the writ petitions pertains to the acquisition of 'Deva' 'swom', viz., as explained by the Division Bench in Prayar Gopalakrishnan's case (supra).

¶136

There is no dispute regarding the fact that the property proposed to be acquired belongs to Thiruvarattukavu Devi Temple. The Hon'ble the Chief Justice, being the master of the roster, allotted the subject of Devaswom matters to a Division Bench and the Division Bench is to hear all Devaswom matters including disputes relating to properties of Devaswoms. In the case on hand, indisputably, the property proposed to be acquired under Ext.P2 notification belongs to Thiruvarattukavu Devi Temple. In this context, it is also to be noted that in the first round of litigation on the same subject matter viz., W.P.(C)Nos.13037 of 2020 and 13683 of 2020 the matter was heard by a Division Bench, in which one among us (C.T. Ravikumar, J.) was a party and they along with W.P.(C)No.13371 of 2021 were disposed of by a common judgment dated 19.1.2021 viz., Ext.P10 judgment in the former writ petition/Ext.P8 judgment in the latter writ petition. As already noticed, the petitioners are challenging Ext.P12 proceedings of the Special Deputy Collector passed pursuant to Ext.P10 judgment.

¶137

¶138

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶139

Taking into account all the aforesaid circumstances we find no merit in the aforesaid preliminary objection raised by the learned Standing Counsel for National Highways Authority of India and hence, it stands repelled.

¶140

In the case on hand, we notice that at first notification under sub-section (1) of Section 3A of the NH Act was issued on 16.2.2010 and there was absolutely no proposal therein for the acquisition of the properties belonging to Thiruvarattukavu Devi Temple. Later, similar notifications were issued respectively on 27.3.2012 and 8.6.2018. In the second notification, which came to be published on 27.03.2012, there was a proposal to acquire 598.2 sq.mt., i.e., 14.28 cents of temple property that situates outside the 'Chuttumathil' of the temple. The third notification which was published on 8.6.2018 contained a proposal to acquire some more extent, to be precise, 0.0998 hectare, i.e., 24.6 cents of temple property. It is after issuing such notifications that the present Ext.P2 notification was issued. Going by the same, the proposal is to acquire more than one acre, to be precise, 0.4452 hectares of the property belonging to Thiruvarattukavu Devi Temple. In the said circumstances, the petitioners have raised various contentions to assail Ext.P12 and the present proposal. It is specifically contended by the petitioners that going by the present proposal, the 'Kannimoola', 'Pattupura', 'Seevelipatha', 'Anakottil', 'Holy Steps' and 'compound wall' of the temple are included as properties to be acquired. To buttress the said contention, they produced Ext.P8. They have also taken up the contention that 'Kannimoola' is an auspicious point of the entire temple structure and destruction and acquisition of the 'Kannimoola' would amount to mutilation of the limbs of the Deity. Taking note of all the aforesaid circumstances and the nature of the contentions raised by the parties we are inclined to admit these matters.

¶141

Hence, the writ petitions are admitted. The learned Assistant Solicitor General takes notice for the common first respondent.

¶142

¶143

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶144

Learned Standing Counsel Sri.Bidan Chandran takes notice for the National Highways Authority of India and its Project Director. Learned Government Pleader takes notice for respondents 3 and 4 in W.P.(C)No.14347 of 2021 and respondents 4 and 5 in W.P.(C)No.14183 of 2021. The learned Standing Counsel for Travancore Devaswom Board takes notice for the 5^th respondent in W.P.(C)No.14347 of 2021. For the time being, notice need not be issued to respondents 6 and 7 in W.P. (C)No.14347 of 2021. 6. There will be an order staying all further proceedings for acquisition in terms of Ext.P3 in W.P.(C)No.14347/2021 viz., Ext.P2 in W.P.(C)No.14183/2021 viz., notification, dated 28.1.2020 and Ext.P12 proceedings till 27.8.2021.” 5. W.P.(C)No.17244 of 2021:- The petitioners who are

¶145

members of Travancore Royal Family have filed this writ petition seeking a writ of certiorari to quash Ext.P7 order dated 15.05.2021 of the 4^th respondent Special Deputy Collector and Competent Authority [Ext.P12 in W.P(C)No.14183 of 2021]. The petitioners have also sought for issue a writ of Mandamus commanding the respondents 4 and 6 to change Ext.P2 alignment in such a manner as to exclude Thiruvarattukavu Devi Temple and its premises from being acquired for the purpose of constructing Attingal Bypass (Ch: 530-600 to Ch: 531-000) and for an order staying all further proceedings of respondents 4 and 6 for the construction of Attingal Bypass (Ch: 530-600 to Ch: 531-000), as per the Ext.P1 notification, till the disposal of the writ petition.

¶146

¶147

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶148

5.1. In the writ petition it is averred that Thiruvarattukavu

¶149

Devi Temple is situated in Attingal, which operated as a sovereign

¶150

state (swaroopam) in the erstwhile Travancore State, enjoying an authority which was far-reaching and powerful and coming under

¶151

the direct rule of the Queen of Attingal, whose son became the King of erstwhile Travancore State. In the absence of male heirs, they themselves sat on the fabled throne. Thiruvarattukavu Devi continues as the dynastic deity especially of these royal ladies along with Sri Padmanabhaswamy of Thiruvananthapuram, who reigns as

¶152

the family and dynastic deity of Travancore Royalty as a whole. Unlike most other temples, there is no ‘sthalapuranam’ as such attached to the origin of Thiruvarattukavu Devi Temple. Historians agree that the temple was constructed by Sankramatheera, the emperor who ruled Venad during the period 474-488 M.E. corresponding to 1299-1313 AD Therefore, the temple is constructed more than 700 years back. ‘Ariyittuvazhcha’ ceremony

¶153

takes place in Thiruvarattukavu Devi Temple every year in the month of ‘Makaram’ and the same is performed by the head of the Travancore Royal Family, of which the writ petitioners are the members. ‘Ariyittuvazhcha’ is being continued even after the transfer of management of the temple from Travancore Royal

¶154

¶155

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶156

Family to the 1^st respondent Travancore Devaswom Board. If there is default on the part of the head of Travancore Royal Family in conducting the said ceremony, prayaschitha/parihara is that he has to offer a live elephant to the temple, which was in fact done earlier, on account of the physical inability of the head of the royal family.

¶157

5.2. The grievance of the petitioners is against the acquisition proceedings based on Ext.P1 notification dated 14.03.2020 issued by the 5^th respondent Central Government. The document marked as Ext.P2 is a sketch showing the proposed alignment, which would show that a portion of ‘Sreevelipatha’, ‘Pattupura’ and ‘Anakkottil’ of Thiruvarattukavu Devi Temple will be affected by the acquisition of land. The document marked as Ext.P3 is the objection filed by the 2^nd respondent Devaswom Commissioner before the 4^th respondent Special Deputy Collector and Competent Authority. The document marked as Ext.P5 is a letter dated 09.07.2018 of the

¶158

Thantri, wherein it is stated that any developmental activities should be made only after protecting the temple and its premises, as the premises of the temple is considered as the parts of the body of the deity (kshetra purusha). As per the proposed acquisition in Ext.P2 sketch the main structures of the temple and a portion of ‘Seevelipatha’ would be taken away from the temple premises.

¶159

¶160

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶161

5.3. In the writ petition, it is averred that there is vacant land owned by the State Government on the western and southern sides of the temple, which is now used as a road through which Attingal Bypass can be constructed, without causing any sort of disturbance to the temple and its premises. A slight change in the alignment can salvage the ancient monument from being disturbed. More so, the petitioners and the devotees of the temple, who are the public at large in and around Attingal are very much affected by the acts of respondents 4 and 6.

¶162

In W.P.(C)No.14183 of 2021, the learned Standing Counsel for NHAI has filed a statement dated 04.03.2022, on behalf of the 3^rd respondent Project Director, contending that the writ petition is not maintainable as it seeks to challenge the approved alignment of the proposed Right of Way (RoW) of Attingal Bypass. Even though there is a vague allegation that the acquisition proceedings are vitiated by mala fides and fraud, the said challenge cannot be countenanced in view of lack of proper pleadings. The change sought by the petitioners with regard to the alignment is to re-work the approved alignment in such a way that the temple properties are not affected by the construction of Attingal Bypass. The change of alignment sought by the petitioner would have the

¶163

¶164

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶165

effect of displacing people or affecting the properties which are not included in the alignment. Therefore, it is imperative that the people who would be affected by the proposed change in the alignment are also to be heard. The alignment and plan for construction of Attingal

¶166

Bypass are prepared using the most modern techniques and machines and linked with the longitude and latitude co-ordinate points. The alignment is not prepared by physical verification and survey of the land sought to be acquired. Therefore, in the approved alignment plan the survey numbers or the structures may not be exact due to the discrepancy in the land revenue records. The exact survey numbers and structures will be shown in the land acquisition alignment plan prepared by the technical experts of the consultant on the basis of the approved alignment plan with the help of the Revenue authorities of the State. The present alignment is prepared based on the clauses in Indian Roads Congress Manual (IRC Manual) to maintain a design speed of 80-100 km/hr and considering the geometric parameters and radius of curvature, in compliance with the IRC Manual. Currently, the existing two-lane road at the stretches where it is being four-laned has many geometric deficiencies which need to be corrected in compliance with the IRC

¶167

¶168

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶169

Manual in respect of the gradient, radius of curvature, etc., so as to maintain a design speed of 80-100 km/hr.

¶170

6.1. In the statement the 3^rd respondent has relied on various

¶171

decisions on the doctrine of eminent domain, judicial review on policy decisions, etc. In the statement it is contended that the entire process of preparation of the Detailed Project Report (DPR) and the acquisition of land for the construction of the National Highway is conducted in a most transparent manner and therefore, the allegation of bias does not come in. In the present acquisition, the 4^th respondent has acted in absolute good faith and there cannot be any allegation of bias. The contention in the writ petition that ‘Kannimoola’ and the structures being very auspicious points of the temple and that the destruction of ‘Kannimoola’ would amount to mutilation of the limbs of the deity are not justiciable contentions, which cannot form the basis for a challenge against the administrative decisions based on public policy. No other writ petitions are filed in respect of the acquisition of land for the stretch from Kadambattukonam to Kazhakkoottam. When the challenge to the acquisition proceedings is less than 1/10^th of the land involved in that acquisition, this Court need not interfere with the acquisition proceedings, as held by the Apex Court in Om Prakash and

¶172

¶173

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶174

another v. State of Uttar Pradesh and others [AIR 1998 SC

¶175

2504] .

¶176

6.2. The 3^rd respondent would dispute the averment in the

¶177

writ petition that the temple is 700 years old. Apart from the mere assertions in the writ petition, there is nothing on record to show the age of the temple. The objections raised by the petitioner are not valid objections according to the legal framework of Land Acquisition laws. A judicial review would lie only if the acquisition proceedings are actuated on extraneous reasons and irrelevant considerations. The petitioner should have a specific case that acquisition proceedings are vitiated by legal, interferential or factual mala fides. In the absence of any of these grounds being urged, pleaded or proved, the writ petition is not maintainable on law or on facts. By the acquisition, the main structure of the temple will not be affected. The Sanctum Sanctorum of the temple remains intact and only a corner of the temple property will be affected. The authorities have taken special care to see that the main structure of the temple is not affected. The 4^th respondent, after conducting a detailed hearing on the objections raised by the petitioner, passed Ext.P12 order. It is a well-considered order. No valid grounds are raised in the writ petition to discredit the findings in Ext.P12 order,

¶178

¶179

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶180

except the ground that some portions of the temple property will be affected, which is not sufficient for setting aside an alignment. Any change of alignment at one point will upset the entire acquisition. It will have the effect of displacing a lot of people, who have already been heard and their respective rights decided under the scheme of the NH Act.

¶181

6.3. Regarding Ext.P14 note of the 5^th respondent District Collector, which is relied on by the petitioner in order to allege mala fides, the 3^rd respondent would point out that, the said note was directly in issue in W.P.(C)No.20142 of 2020. In that writ petition, that note was marked as Ext.P6. In the judgment dated 09.04.2021, while dismissing that writ petition, this Court found that the said note of the District Collector cannot be relied upon to conclude that the alignment has been shifted to favour some persons, as it is not a conclusive report with technical assistance or made with reference to records. In the said judgment, this Court noticed the contention of NHAI that they were not consulted by the District Collector before giving such a report. Therefore, in the judgment in W.P.(C)No.20142 of 2020, this Court concluded that the allegations that the acquisition is vitiated by mala fides, in the absence of proof, have to fail.

¶182

¶183

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶184

6.4. The 3^rd respondent would contend that there is no infirmity in Ext.P12 order passed by the 4^th respondent and no legal grounds are urged in the writ petition to discredit the findings contained therein, as contemplated under judicial review. The alignment is prepared according to the DPR and therefore, the question of change of alignment is not justiciable. In support of the said contention, the 3^rd respondent would rely on the judgment of the Apex Court in Union of India v. Dr.Kushala Shetty [(2011) 12 SCC 69] . The legal position in the said decision has been reiterated by the Apex Court in Project Director, Project Implementation Unit v. P.V. Krishnamoorthy [(2021) 3 SCC

¶185

572] . Relying on the decision of the Karnataka High Court in Miss.

¶186

Bernadette Fernandez and others v. Union of India and others [ILR 2013 Kar. 1938] , the 3^rd respondent would contend

¶187

that selection of any particular spot or area for the location of any service cannot be challenged in a writ petition under Articles 226 and 227 of the Constitution of India.

¶188

Along with I.A.No.1 of 2022 in W.P.(C)No.14183 of 2021, the petitioner has placed on record, a copy of the order of the Apex Court dated 21.03.2022 in Civil Appeal No.1846 of

¶189

2022 [N.G. Projects Ltd. v. Vinod Kumar Jain and others] ,

¶190

¶191

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶192

wherein it was held that, in view of the intend of the Legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hands to stay the construction of the infrastructure project. The provisions under Section 41(ha) of the Specific Relief Act should be kept in view even by the writ court. Along with I.A.No.3 of 2022 the learned Standing Counsel for National Highway Authority of India has placed on record Ext.R3(a) list of judgments.

¶193

Along with I.A.No.4 of 2022, the learned Standing Counsel has placed on record Ext.R3(a) list of affected religious institutions. In the affidavit filed in support of I.A.No.4 of 2022, which is one sworn to by the 3^rd respondent Project Director, it is stated as follows:

¶194

“3. That, the Thiruvarattukavu Temple is located at Ch:529+800 LHS in the proposed Attingal Bypass, Trivandrum district. The Alignment is designed in such a way that there is no damage to the main temple building of Thiruvarattukavu Temple. Only a portion of the building in the south-west corner is getting affected and the "Seevelipatha" (walkway inside the temple compound) is affected.

¶195

That, by virtue of the Government's policy to minimise damage sustained to religious structures falling under the design corridor, a detailed study on religious Kazhakkuttam to Thuravoor was conducted prior to finalizing the alignment. The study shows that forty (40) religious structures, most partially and some fully will be affected by the alignment. Hereto marked and annexed as Exhibit R3(a) is the list of affected religious structures.

¶196

¶197

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶198

That, while fixing the alignment in compliance with the aforementioned policy, due diligence, as much as given for all religious structures in the project corridor, was given to Thiruvarattukavu Devi Temple to ensure that the temple structure is not affected as far as possible. The design was prepared in tune with all technical specifications and design parameters. The alignment is designed in such a way that there is no damage to the main temple building. Only a portion of the compound wall and a portion building at the corner is being affected.

¶199

That, there is another temple (Kozhimada Devi Temple) opposite to Thiruvarattukavu temple within 100 mts on RHS. Therefore, the alignment cannot be shifted towards RHS at Thiruvarattukavu Temple location (Ch:530+800) since the other temple (Kozhimada Mahamoorthy) situated at Ch:530+900 will get affected. The alignment is designed in such a way that the main structures of neither temple are affected.

¶200

That, a six-lane highway requires 45 mts. bandwidth. The present alignment is designed in tune with the mandatory technical parameters as well as ensuring that the main structures of neither Thiruvarattukavu Devi Temple nor Kozhimada Devi Temple are affected.”

¶201

In W.P.(C)No.14347 of 2021, the learned Standing

¶202

Counsel for NHAI has filed a statement dated 04.03.2022, on behalf

¶203

of the additional 8^th respondent Project Director, raising the very same contentions in the statement filed in W.P(C)No.14183 of 2021.

¶204

The petitioners in W.P.(C)No.14347 of 2021 have filed a reply affidavit dated 06.06.2022, wherein it is stated that the statement filed on behalf of the additional 8^th respondent failed to

¶205

¶206

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶207

address the patent constitutional and other legal questions involved

¶208

in a matter of acquisition proceedings with respect to a temple of 700 more years of heritage and history. Article 25 to 28 of the Constitution of India ensures the right to freedom of religion. Article 49 directs the State to protect every monument or place or object of artistic or historic interest from spoliation, disfigurement, destruction, removal, etc. Article 51A(f) mandates that it shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture. The temple is the abode of the deity and all the property of the temple is owned by the deity. The deity is a perpetual minor having the right to sue and be sued. Any devotee, on behalf of the deity who is a perpetual minor, can move a writ petition before this Court under Article 226 before this Hon'ble Court. The history and antiquity of the temple can be answered only by the 6^th respondent Archaeological Survey of India and the 7^th respondent Archaeological Department. Clause (a) of Section 2 of Ancient Monuments and Archaeological Sites and Remains Act, 1958, defines 'ancient monument’ and clause (d) of Section 2 defines 'archaeological sites and remains'. Thiruvarattukavu Devi Temple, which is the abode of the prime deity of Venad (erstwhile Travancore), was constructed 713 years back in 1307 AD following

¶209

¶210

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶211

the adoption of a Princesses in 1305 AD from 'Kolathu Nadu' of Kannur in North Kerala. In paragraph 5 of Exhibit P8 judgment, this Court observed and emphasised the historical importance of Thiruvarattukavu Devi Temple. The 3^rd respondent, while rejecting the objections of the petitioner, lost sight of the letter and spirit of Exhibit P8 judgment and the objections raised by the petitioners in Ext.P9 with the help of Ext.P11, P11(a) to P11(l) Google images. To establish the falsity regarding the point of feasibility the petitioners have prepared Ext.P15 documentary video with the help of a drone and Google images with the aerial view of Thiruvarattukavu Devi Temple and the proposed land for acquisition (Ch:530+800 to Ch:530+900).

¶212

In W.P.(C)No.17244 of 2021, the learned Standing Counsel for National Highway Authority of India has filed a statement on behalf of the 6^th respondent Project Director, raising the very same contentions in the statement filed in W.P(C)No.14183 of 2021.

¶213

Heard the learned Standing Counsel for Travancore Devaswom Board for the petitioner in W.P.(C)No.14183 of 2021, the learned counsel for the petitioner in W.P.(C)No.14347 of 2021 and 17244 of 2021, the learned Standing Counsel for NHAI and also the

¶214

¶215

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶216

learned Assistant Solicitor General of India.

¶217

The issue that arises for consideration in these writ petitions is as to whether any interference is warranted on order dated 15.05.2021 of the 4^th respondent Special Deputy Collector and Competent Authority [Ext.P12 in W.P(C)Nos.14183 of 2021 and 14347 of 2021 and Ext.P7 in W.P.(C)No.17244 of 2021], which is also under challenge in the connected writ petitions invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

¶218

The learned Standing Counsel for Travancore Devaswom Board for the petitioner in W.P.(C)No.14183 of 2021 and the learned counsel for the petitioners in W.P.(C)Nos.14347 of 2021 and 17244 of 2021 would contend that Ext.P12 order dated 15.05.2021 of the Competent Authority is per se arbitrary and illegal. Ext.P12 order is vitiated by total non-application of mind, which warrants interference in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The Competent Authority overruled the objections raised by the petitioners and the demand for a change of alignment of Attingal Bypass in NH-66, without even considering the contentions raised by the petitioners with specific reference to the Google images [Ext.P13 in

¶219

¶220

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶221

W.P.(C)No.14347 of 2021 and Exts.P11, P11(a) to P11(l) in W.P.(C)No.14183 of 2021]. Thiruvarattukavu Devi Temple is an ancient monument, which has to be protected in view of the provisions under Article 49 and 51A(f) of the Constitution of India. The temple is more than 700 years old. The known history of Thiruvarattukavu Devi Temple relates back to 1307 AD. Koyikkal Palace, which is situated adjacent to Thiruvarattukavu Devi Temple, is being taken over by the Archaeological Department. Thiruvarattukavu Devi is ‘Paradevatha’ of the Travancore Royal Family and ‘Adisthana Devatha’ of Attingal Desom. ‘Ariyittuvazhcha’, which started centuries before, is still continued by Travancore Royal Family, in the month of Makaram every year, which is celebrated as the festival of the Desom. As pointed out in Google images, a slight deviation of the alignment will save the temple structures, without any additional financial burden. The specific contentions raised by the petitioners, placing reliance on Google images, were not even considered by the Competent Authority showing scant regard to the directions contained in the judgment of this Court in W.P.(C)No.13037 of 2020 and connected matters. While finalising the alignment of Attingal Bypass the authorities ought to have ensured that no damage is caused to the temple

¶222

¶223

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶224

structures. ‘Pattupura’ is essential for performing ‘Ariyittuvazhcha’ in Thiruvarattukavu Devi Temple, which started centuries before. The damage that will be caused to the temple structures due to land acquisition will deplete ‘Kshethra Chaithanyam’.

¶225

The learned Standing Counsel for the NHAI would contend that the present alignment of Attingal Bypass is prepared based on the relevant clauses of IRC Code of Manual, to maintain a design speed of 80-100km/hr, considering the geometric parameters and radius of curvature, etc. The contentions raised in the writ petition that ‘Kannimoola’ and other structures of the temple are very auspicious points, which cannot be acquired, is not a justiciable contention, which can form the basis of a challenge against the notification issued under Section 3A(1) of the NH Act or the decision taken by the Competent Authority on the objections raised by the petitioners for change of alignment of Attingal Bypass.

¶226

Other than the petitioners, none have challenged the acquisition proceedings in the stretch Kadambattukonam to Kazhakoottam. There is nothing on record to show that Thiruvarattukavu Devi Temple is 700 years old. The petitioners have no specific case that

¶227

the acquisition proceedings are vitiated by mala fides. Judicial review in exercise of the extraordinary jurisdiction of this Court

¶228

¶229

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶230

under Article 226 of the Constitution of India would lie only if the acquisition proceedings are actuated on extraneous reasons and irrelevant considerations. By the acquisition, the main structure of Thiruvarattukavu Devi Temple will not be affected. The sanctum

¶231

sanctorum of the temple remains intact and only a corner of the temple property will be affected. The authorities have taken special care to see that the main structure of the temple is not affected. Pursuant to the directions contained in the judgment of this Court in W.P.(C)No.13037 of 2020 and connected cases, the Competent Authority conducted a detailed hearing on the objections raised by the petitioners and passed Ext.P12 order, which is a well-considered order. No valid grounds are raised in the writ petition to discredit the findings in Ext.P12 order. Any change of alignment at one point will upset the entire acquisition. It will have the effect of displacing a lot of people, who have already been heard and their respective rights decided under the scheme of the NH Act. The contention of the petitioners that the present alignment is fixed in an arbitrary manner to favour certain influential persons, by saving their properties, and as such it is vitiated by mala fides is absolutely untenable. Ext.P14 note of the District Collector relied on by the petitioners was directly in issue in W.P.(C)No.20142 of 2020. In the

¶232

¶233

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶234

judgment dated 09.06.2021, while dismissing that writ petition, this Court found that the said note of the District Collector cannot be relied upon to conclude that the alignment has been shifted in favour of some persons, as it is not a conclusive report with technical assistance or made with reference to records. The alignment of Attingal Bypass is prepared according to the Detailed Project Report (DPR). The selection of a particular alignment for a National Highway or Bypass by NHAI cannot be interfered with by this Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India, in view of the decisions of the Apex Court.

¶235

The learned Senior Government Pleader would also contend that Ext.P12 order of the Competent Authority is a wellconsidered order, which warrants no interference in exercise of the writ jurisdiction under Article 226 of the Constitution of India. No valid grounds are raised in the writ petition to discredit the findings in Ext.P12 order. Any change of alignment at one point will upset the entire acquisition.

¶236

17. The National Highways Act, 1956 (NH Act) was enacted by Parliament to provide for the declaration of certain highways to be National Highways and for matters connected therewith. As per sub-section (1) of Section 3A of the NH Act, where the Central

¶237

¶238

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶239

Government 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, it may, by notification in the Official Gazette, declare its intention to acquire such land.

¶240

18. In Project Implementation Unit v. P.V.

¶241

Krishnamoorthy [(2021) 3 SCC 572] the Apex Court noticed that Section 3A of the NH Act, inserted by way of an amendment in the year 1997, empowers the Central Government to declare its intention to acquire ‘any land’. It need not be linked to an existing road or State highway. The central condition for the exercise of such power by the Central Government is that it should be satisfied that such land is required for the public purpose of building a national highway or part thereof. Section 3B of the Act empowers the person authorised by the Central Government to enter upon the notified

¶242

lands for the limited purpose of survey, etc. to ascertain its suitability for acquisition for the stated purpose or otherwise. The final declaration of acquisition is then issued under Section 3D of Act, after providing opportunity to all persons interested in the notified land to submit their objections and participate in a public hearing under Section 3C. The contour of issues debated during this public hearing are in reference to matters relevant for recording

¶243

¶244

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶245

satisfaction as to whether the notified land is or is not required for

¶246

a public purpose for building, maintenance, management or

¶247

operation of a national highway or part thereof. Consequent to the publication of the declaration under Section 3D, the land referred to

¶248

in the notification vests absolutely in the Central Government, free from all encumbrances. Possession of such land is then taken under Section 3E of the Act, upon depositing the compensation amount in the manner provided in Section 3H of the Act and as determined under Section 3G. Section 3F empowers the Central Government to enter upon the land after the same is vested in terms of Section 3D of the Act. Notably, Section 3J of the Act is a non-obstante provision and it predicates that nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under the NH Act. The national highways vest in the Union in terms of Section 4 of the Act and the responsibility for development and maintenance thereof is primarily

¶249

that of the Central Government in terms of Section 5. The Central Government is competent to issue directions to the Government of any State in respect of matters specified in Section 6 of NH Act. Section 9 empowers the Central Government to make rules in respect of matters provided therein for carrying out the purposes of the Act.

¶250

¶251

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶252

In P.V. Krishnamoorthy [(2021) 3 SCC 572] the

¶253

Apex Court noticed that the requirement of a national highway within the country as a whole and State-wise, in particular, is to alleviate evolving socio-economic dynamics, for which such a wide

¶254

power has been bestowed upon the Central Government. The Central Government is obliged to do so to facilitate the discharge of its obligations under Part IV of the Constitution of India. By its very nomenclature, a national highway is to link the entire country and provide access to all in every remote corner of the country for interaction and to promote commerce and trade, employment and education, including health related services. This approach would enhance and further the federal structure. This is because the

¶255

existence of a national highway in the neighbourhood paves way for the fulfilment of aspirations of the locals and their empowerment.

¶256

It not only brings with it the opportunity to travel across, but also propels the economy of that region and the country as a whole. It gives impetus to myriads of social, commerce and more importantly, access to other activities/ facilities essential for the health, education and general well-being of the locals, in particular.

¶257

In P.V. Krishnamoorthy [(2021) 3 SCC 572] one

¶258

among the contentions raised before the Apex Court was that the

¶259

¶260

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶261

decision to change the stretch/section to C-K-S (NC) was arbitrary and was not backed by scientific study. The Apex Court dealt with that contention in Paras. 63 to 68 of that decision. The Apex Court noticed that alteration to the extent of 15% is permissible if the development of certain identified stretches under the programme cannot be taken up on account of issues pertaining to alignment finalisation, land availability and other unforeseen factors and concerns relating to congestion, reduction of distance, operational efficiency are some of the factors which may attract such alteration. In the meeting convened on 19.01.2018, chaired by the Secretary, Ministry of Road Transport and Highways (MoRTH) for examining the micro-level implementation of the comprehensive project and keeping in mind the pressing requirements of the State concerned, the Committee opted for substitution/replacement of the original stretch/section [C-M (EC)] for the reasons recorded in the minutes. The Committee decided to change section C-M (EC) to C-K-S (NC) as regards the State of Tamil Nadu. The Apex Court found it a wellconsidered decision taken by the Committee set up under the aegis of MoRTH. One of the reasons recorded in the minutes is that instead of opting for expansion of the existing stretch/section [C-M (EC)], a crow-flight greenfield alignment be preferred and

¶262

¶263

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶264

developed between Chennai and Salem via Harur under National Corridor Efficiency Improvement, so as to reduce the distance between Chennai and Salem/Coimbatore by 40 km and also diversify the traffic from the congested Chennai-Krishnagiri section of Golden Quadrilateral and Chennai-Ulundurpet section of the C-M (EC). It is well settled that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by the

¶265

courts - as observed in Paras. 59 to 62 of Akhil Bharat Goseva Sangh (3) v. State of A.P. [(2006) 4 SCC 162] , K. Vasudevan Nair v. Union of India [(1991) Supp.2 SCC 134] and Systopic Laboratories (P) Ltd. v. Prem Gupta [(1994) Supp.1 SCC 160] .

¶266

In P.V. Krishnamoorthy [(2021) 3 SCC 572] the Apex Court found no substance in the argument that the change of stretch/section to C-K-S (NC) was not based on any tangible material to sustain the stated decision of the Committee. Indeed, the necessity to enhance the existing section of the Economic Corridor between Chennai-Madurai was taken note of in the principal Pariyojana. However, the Committee, as per the discretion bestowed in it, in terms of the approved Pariyojana, whilst reckoning the imperatives of the region under consideration for

¶267

¶268

W.P(C)Nos.14183 of 2021,

¶269

14347 of 2021 & 17244 of 2021

¶270

micro-level implementation, took a conscious decision to opt for C-

¶271

K-S (NC) being relatively more beneficial and to strengthen the

¶272

National Corridor; and at the same time increase efficiency of the existing Economic Corridor. Such a decision, obviously, partakes the

¶273

colour of a policy decision of the Central Government, which is also backed by the guidelines issued on 26.02.2018 by MoRTH (Planning Zone).

¶274

In Para. 67 of the decision in P.V. Krishnamoorthy [(2021) 3 SCC 572] , the Apex Court quoted Annexure 1.1 to Chapter 1 of the Manual of Guidelines on Land Acquisition for National Highways under the National Highways Act, 1956, published by the Government of India, MoRTH, in December, 2018. Chapter 1 of the Manual of Guidelines deals with ‘NH Project Alignments and the Role of DPR Consultants’. Para.1.1. of Chapter 1 deals with ‘p roject alignment and hindrances/encumbrances for the Right of Way (RoW)’. The challenges and hindrances on account of religious structures are referred to in clauses (iii) and (v) of Para.1.1. Para.1.2. of Chapter 1 deals with ‘r ole and responsibilities of DPR Consultants’. As per clause (ii) of Para.1.2., where the DPR

¶275

Consultant proposes a new alignment or a bypass, its due validation by a field visit on the proposed alignment by the concerned officers

¶276

¶277

W.P(C)Nos.14183 of 2021,

¶278

14347 of 2021 & 17244 of 2021

¶279

of the Project Implementing Agencies along with the DPR Consultant is a must. Since the alignments have to be approved at sufficiently senior levels (Member in NHAI, MD in NHIDCL, ADGs in the Ministry), the competent authority approving the alignment

¶280

must take a certificate, jointly signed by the DPR Consultant and the concerned PD, to the effect that all such hindrances (religious and private structures/public buildings/ major Utilities, etc. have

¶281

been identified and avoided (to the extent feasible) while delineating the alignment or the nature of hindrances, which are unavoidable and fall in the proposed RoW of the road alignment are identified, pointed out and marked upfront. As per clause (ii) of

¶282

Para.1.2., the DPR Consultant must make a specific mention of the

¶283

following hindrances while proposing an alignment;

¶284

(a) any religious structures (temple/mosque/mazar/church/ gurudwara/cemetery/cremation ground coming in the proposed RoW;

¶285

(b) any other commercial/industrial/institutional/residential structures in the proposed RoW;

¶286

¶287

(d) ensure that location of any Structure (bridge/flyover/ VUP) is suitably adjusted avoiding shifting of high-tension electricity lines of 66/132/220/400/765 KV levels.

¶288

¶289

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶290

Annexure 1.1 to Chapter 1 of the Manual of Guidelines

¶291

on Land Acquisition for National Highways under the National Highways Act deals with policy guidelines on the subject ‘determination of alignment/route for the widening of national highways’. As per Para.4 of Annexure 1.1, up -gradation of the existing road arteries to national highways has been found to be sub-optimal in many cases due to factors enumerated in clauses (i) to (vi). As per clause (iv) of Para.4, removal/demolition of existing built-up structures along the required RoW makes it not only difficult but also far more expensive in terms of the associated costs. It becomes all the more challenging when it comes to the removal of religious structures (e.g. temples, mosques, churches, etc., which are again found to be in existence in large numbers along the existing roads). Para.10 of Annexure 1.1 states that, with the approval of competent authority, it has been decided to make

¶292

analysis in terms of the guidelines an integral part of the DPR preparation. All the executive agencies are required to adhere to the guidelines and to incorporate the contents of the circular dated 26.02.2018 in the TOR of the DPR Consultancy.

¶293

Chapter 3 of the Manual of Guidelines on Land Acquisition for National Highways under the National Highways Act

¶294

¶295

W.P(C)Nos.14183 of 2021,

¶296

14347 of 2021 & 17244 of 2021

¶297

deals with ‘process of land acquisition under the National Highways

¶298

Act’. Para.3.13.1 of Chapter 3 deals with ‘role and responsibility of

¶299

DPR Consultants’. The DPR Consultants, in the process of their deliverables, discharge a pro-active role in providing support system and assistance to the Competent Authority for Land Acquisition (CALA) for the highway project. As per clause (i) of Para.3.13.1, the DPR Consultants are expected to delineate and propose the most optimal alignment and take care of geometrics of the road to meet safety parameters while finalising the DPR. As per clause (ii), the DPR Consultants are expected to identify and avoid (to the extent feasible) all such structures (religious structures, public utilities, cremation grounds, private structures) in the RoW

¶300

of the road project that could become major hindrances at the time of project execution. As per clause (ix), the DPR Consultants are expected to prepare an inventory of all the utilities (electrical/water supply lines/gas pipelines, etc. - both linear and cross-overs) and all such structures (religious structure, public utilities, cremation grounds, private structures) in the RoW of the road project that could become major hindrances at the time of project execution.

¶301

In P.V. Krishnamoorthy [(2021) 3 SCC 572] the Apex Court noticed that the guidelines have been issued after the

¶302

¶303

W.P(C)Nos.14183 of 2021,

¶304

14347 of 2021 & 17244 of 2021

¶305

decision was already taken on 19.01.2018 in respect of section C-

¶306

K-S (NC) in lieu of C-M (EC) section. The decision was taken by the broad-based committee of experts, of which the Secretary of the same Ministry (MoRTH) which had issued the guidelines on 26.02.2018, was the Chairperson along with the other officials including the officials of NHAI. The decision regarding change is a policy decision. More so, keeping in mind that the change in alignment and the purpose of such a change is stated to be for strengthening the national corridor (NC) in preference to the economic corridor (EC) in the region, it is not open to disregard this opinion of the Central Government based on the recommendation of the Committee constituted by it for that singular purpose. The Apex Court found that the basis for taking such an informed decision by the Committee is ascribable to tangible aspects referred to in the minutes of the meeting held on 19.01.2018 (as is manifest from the factual aspects recorded therein).

¶307

In Union of India v. Kushala Shetty [(2011) 12 SCC

¶308

69] the Apex Court analysed the provisions under Sections 3A to 3D of the NH Act and opined that the National Highways Authority of India (NHAI) is a professionally managed statutory body having expertise in the field of development and maintenance of national

¶309

¶310

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶311

highways. The projects involving the construction of new highways and widening and development of the existing highways, which are vital for the 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 the development and maintenance of national highways after a thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including the intensity of heavy vehicular traffic and larger public interest. Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the

¶312

particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The court

¶313

can nullify the acquisition of land and, in the rarest of rare cases,

¶314

the particular project if it is found to be ex-facie contrary to the mandate of law or tainted due to malafides. In the facts of the case in hand, the Apex Court found that neither has any violation of the mandate of the NH Act been established nor has the charge of malice in fact been proved. Therefore, the Apex Court held that the order under challenge cannot be sustained.

¶315

¶316

14347 of 2021 & 17244 of 2021

¶317

W.P(C)Nos.14183 of 2021,

¶318

In P.V. Krishnamoorthy [(2021) 3 SCC 572] the

¶319

Apex Court quoted with approval the dictum laid down in Kushala

¶320

Shetty [(2011) 12 SCC 69] about the functions of the National Highways Authority and that, it is not open to the court to castigate the reasons weighed with the competent authority on the viability and feasibility of a particular project and whether a particular alignment would subserve the larger public interest.

¶321

The Indian Roads Congress was set up in December, 1934 on the recommendations of the Indian Road Development Committee (Jayakar Committee) set up by the Government of India, with the objective of Road Development in India. Indian Roads Congress works in collaboration with the Ministry of Road Transport and Highways (MoRTH). The Director General (Road Development) and Special Secretary, MoRTH, is the Honorary Treasurer of the Indian Roads Congress. There are three Apex Committees, which are responsible for formulation and updation of Codes of Practices, Standards and Guidelines, i.e., Highways Specifications and Standards Committee; Bridges Specifications and Standards Committee; and General Specifications and Standards Committee. There are Technical Committees under each Apex Committees. The Director General (Road Development) and

¶322

¶323

W.P(C)Nos.14183 of 2021,

¶324

14347 of 2021 & 17244 of 2021

¶325

Special Secretary, MoRTH; the President and Secretary General of Indian Roads Congress are Ex-Officio members of all Technical Committees.

¶326

The ‘Manual of Specifications and Standards for FourLaning of Highways through Public Private Partnership’ was first published in 2009 as IRC:SP:84-2009 and subsequently revised in 2014. Based on the approval granted on 22.11.2018, ‘Manual of Specifications and Standards for Four-Laning of Highways’ (Second Revision) was published in August, 2019 as IRC:SP:84-2019. The Manual describes planning, standards, design, construction, maintenance, operation, safety and environmental requirements to be fulfilled in the execution of the works relating to widening of highways from two-lane to four-lane or new construction of fourlane highways. The Manual is applicable for four-laning of highways through Public Private Partnership (PPP) mode, which may also be used for non-PPP projects. The scope of the work shall be as defined in the Concession Agreement and the Manual shall be read harmoniously with the intent of the Concession Agreement.

¶327

As per Para.1.2 of the Manual, the project highway and the project facilities shall conform to the requirements of design and specifications set out in the Manual, which are the minimum

¶328

¶329

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶330

prescribed. The project report and other information provided by the Authority shall be used by the concessionaire only for its own reference and for carrying out further investigations. The concessionaire shall be solely responsible for undertaking all the necessary surveys, investigations and detailed designs in accordance with good industry practice with due diligence, and shall have no claim against the authority for any loss, damage, risk, costs, liabilities or obligations arising out of or in relation to the project report and other information provided by the Authority. As per Para.1.4 of the Manual, t he Codes, Standards, Technical Specifications and Guidelines applicable for the design and construction of project components are (i) Indian Roads Congress (IRC) Codes, Standards and Guidelines; (ii) Specifications for Road and Bridge Works issued by MoRTH; (iii) any other standards referred to in the Manual and any supplement issued with the bid document. As per Para.1.5, the version of the Codes, Standards, Specifications, etc. notified/published at least 60 days prior to the last date of bid submission shall be considered applicable. As per Para.1.8, in case of any conflict or inconsistency in the provisions of

¶331

the applicable IRC Codes, Standards or MoRTH Specifications, the provisions contained in this Manual shall prevail.

¶332

¶333

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶334

31. Para.1.13 of the Manual deals with general

¶335

considerations for planning, design and construction. As per Para.1.13, the project highway shall be planned as a ‘partially access controlled highway’ where access to the highway shall be

¶336

provided only at pre-determined locations. In doing so, the concessionaire shall take measures to overcome the physical and operational constraints and plan, design and construct the project highway using appropriate methods, management techniques and technologies. The objective, therefore, is to construct a four-lane highway for all road users as an active infrastructure facility for people for their safety and services and as a catalyst in the development of the economy based on an inclusive approach. Clauses (a) to (d) of Para.1.13 deals with general considerations. As per clause (b), which deals with ‘safety of design’, al l designs shall be safe to ensure that the project highway or any part thereof (for example embankment, pavement, retaining structures, bridges, culverts, etc.) does not collapse (global stability) nor its serviceability/performance (for example settlement, roughness, undulations, deflections, etc.) deteriorates below acceptable level as prescribed in Schedule K of the concession agreement.

¶337

Section 2 of the Manual lays down standards for

¶338

¶339

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶340

geometric design and general features for four-lane divided carriageway. As per clause (iv) of Para.2.1, the geometric design of the project highway shall conform to the standards set out in this section as a minimum. As per clause (v), as far as possible, uniformity of design standards shall be maintained throughout the length of the project highway. In case of any change, it shall be affected in a gradual manner. Para.2.2 deals with design speed. As per Para.2.2.1, the design speeds given in Table 2.1 shall be adopted for various terrain classifications. The terrain is classified by the general slope of the ground across the highway alignment. Para.2.3 of the Manual deals with Right of Way (RoW); Para.2.4 deals with land width of carriageway; Para.2.5 deals with median; Para.2.6 deals with shoulders; Para.2.7 deals with width of roadways; Para.2.8 deals with crossfall. Para.2.9 of the Manual deals with geometric design. As per Para.2.8.1, geometric design shall conform to IRC:73, except as otherwise indicated in this Manual.

¶341

33. P ara.2.12 of the Manual deals with access to project highway. As per Para.2.12.1, access to the project highway shall be partially controlled. In general, access to the project highway shall be provided at the following locations: (i) intersection with national

¶342

¶343

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶344

highways, (ii) intersection with state highways, (iii) intersection with major district roads, (iv) intersection with village rods and other district roads, subject to a minimum distance of 3 km from the nearest intersection. The locations of intersections shall be specified in Schedule B. Para.2.14 of the Manual deals with median openings. As per Para.2.14.1, in open country, median openings shall not be spaced closer than 2km. Additional controlled openings shall also be provided for inspection and diversion of traffic during repair and rehabilitation. In built-up area, median opening shall be provided as per site requirement and the spacing between two medians opening in built-up area shall not be less than 500 m. All such locations shall be mentioned in Schedule B of the concession agreement.

¶345

34. Section 3 of the Manual deals with intersections and grade separators. As per Para.3.1.1, su bject to the provisions of the Manual, properly designed intersections shall be provided at all road crossings/junctions, so as to ensure that no intersection remains without safe and efficient design. The possibility shall be explored for planning to bring the hierarchical network by connecting minor intersections through service roads and taken to major intersections. The types and locations of grade-separated intersections shall be

¶346

¶347

W.P(C)Nos.14183 of 2021,

¶348

14347 of 2021 & 17244 of 2021

¶349

specified in Schedule B of the concession agreement. The intersections to be provided shall be one of the following types: (i) at-grade intersections (ii) grade separated intersections. Para.3.5 of the Manual deals with traffic control devices. As per Para.3.5, the traffic signs shall be provided as per IRC:67 and pavement markings as per IRC:35 along with other essential provisions for traffic control devices made in Section 9 of the Manual.

¶350

35. Section 4 of the Manual deals with embankment and cut sections; Section 5 deals with pavement design; and Section 6 deals with highway drainage. Section 7 of the Manual deals with design of structures. As per clause ( i) of Para.7.1, all structures shall be designed in accordance with the relevant Codes, Standards and Specifications, Special Publications and Guidelines of the IRC. Construction of all culverts, bridges and grade-separated structures shall conform to MoRTH Specifications for Road and Bridge Works. Section 8 of the Manual deals with materials. As per Para.8.1, all materials to be used in works shall be in conformity with the requirements laid down for relevant item in MoRTH Specifications. If the concessionaire proposes to use any material, which is not covered in MoRTH Specifications, it shall conform to IRC or relevant Indian Standards, if there are any, or to the International Standards.

¶351

¶352

W.P(C)Nos.14183 of 2021,

¶353

14347 of 2021 & 17244 of 2021

¶354

Proprietary products proposed to be used shall be proven by use in comparable international road and bridge projects, and shall be supported with authenticated licensing arrangement with the manufacturer.

¶355

Section 9 of the Manual deals with traffic control devices, road safety devices and roadside furniture. Para.9.2 deals with road signs. As per Para.9.2, the three types of road signs viz., mandatory/regulatory signs, cautionary/warning signs and informatory signs shall be provided as given in IRC:67 and Section 800 of MoRTH Specifications. Proper signs shall be provided for main carriageways, service and slip roads, toll plaza and other project highway facilities. Clustering and proliferation of road signs shall be avoided for enhancing their effectiveness. As per Para.9.2.7, wherever the project highway alignment is on a curve, there shall be advance cautionary signs for sharp curves (depending on whether it is on left or right) and chevron signs (rectangular in shape with yellow background and black arrow) at the outer edge of the curve. The sign for the curve ahead particularly in mountainous and steep terrain shall always be accompanied with

¶356

chevron signs at the outer edge of the curve and appropriate delineation. Section 10 of the Manual deals with toll plazas.

¶357

¶358

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶359

37. In Indian Oil Corporation Ltd. v. Arti Devi Dangi [(2016) 15 SCC 480] the question that came up for consideration before the Apex Court was as to whether the insistence by the appellant Indian Oil Corporation Ltd. on adherence to the Indian Roads Congress (IRC) guidelines requiring maintenance of a specific distance between the proposed retail outlet and the median of the

¶360

road was correct in view of the fact that in the advertisement and the brochure there was no specific reference to the said guidelines and no specific mention was made that the same would have to be complied with by a tenderer. The respondent-writ petitioners in both the appeals have been disqualified on the ground that they do not satisfy the requirement in question (i.e. distance) under the aforesaid guidelines. T he relevant part of the advertisement issued, dealing with the above question, provided that “for establishment of Kendra, the compulsory measurement of the plot should be 35m × 35m (apart from the PWD land) the proposed plot of land for KVK should not be on the National Highway/State Highway and should fulfil all the Rules and sub-rules of PWD and local legal necessities.” The only basis on which the decision of the appellant-Corporation

¶361

has been faulted with by the High Court was that the IRC Guidelines are not mandatory. The materials on record showed that the IRC

¶362

¶363

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶364

Guidelines have been adopted by the State PWD of Madhya Pradesh.

¶365

As evident from the proceedings of the selection, even at the very initial stage of consideration of the cases of the respondents, it is the requirements spelt out under the IRC Guidelines that were taken into account to hold that they do not fulfil the eligibility criteria prescribed by the tender conditions.

¶366

38. In Arti Devi Dangi [(2016) 15 SCC 480] , the Apex Court found that, if the clauses in the advertisement required a tenderer to fulfil all requirements under the rules and sub-rules of PWD and if what was suggested/recommended by IRC has been adopted by the State PWD and IRC norms are in the interest of public safety and would facilitate smooth movement of traffic, it will be difficult to hold that the rules and sub-rules of PWD contemplated in the advertisement do not embrace the IRC Guidelines either

¶367

because there was no specific mention thereof in the tender documents or the same do not have a statutory flavour. The Apex Court held that the fulfilment of the requirements spelt out by the IRC Guidelines relevant to the present cases was a mandatory requirement of the tender conditions. The action of the appellant- Corporation cannot be said to be either arbitrary or unreasonable inasmuch as a uniform standard has been applied to all the

¶368

¶369

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶370

applicants. The action of the appellant-Corporation, therefore, not being in any manner arbitrary or unreasonable the power of judicial review vested in the High Court ought to have been exercised with due circumspection. The only basis on which the decision of the appellant-Corporation has been faulted with by the High Court was that the IRC Guidelines are not mandatory. The Apex Court held that such a view cannot be sustained, keeping in mind the provisions of the advertisement quoted above; the purport and object of the said norms; the uniform application of the same to all the tenderers by the appellant-Corporation and above all the requirements of public interest.

¶371

As held by the Apex Court in Kushala Shetty [(2011) 12 SCC 69] , the courts are not at all equipped to decide upon the viability and feasibility of a particular project and whether a particular alignment would subserve the larger public interest. In

¶372

such matters, the scope of judicial review is very limited. After analysing the provisions under Sections 3A to 3D of the NH Act, the Apex Court opined that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. NHAI comprises of persons having vast knowledge and expertise in the field of highway development and

¶373

¶374

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶375

maintenance. NHAI prepares and implements projects relating to the development and maintenance of highways after a thorough study by experts in different fields. Detailed project reports are prepared, keeping in view the relative factors including the intensity of heavy vehicular traffic and larger public interest. In the said decision, the Apex Court held that the court can nullify the acquisition of the land only in the rarest of rare cases if it is found that the particular project or the particular alignment is ex facie contrary to the mandate of law or tainted with malafides. In view of the law laid down by the Apex Court in P.V. Krishnamoorthy [(2021) 3 SCC 572] it is not open to the court to castigate the reasons weighed with the competent authority on the viability and feasibility of a particular project and whether a particular alignment would subserve the larger public interest.

¶376

40. M anual of Specifications and Standards for Four-Laning of Highways published by the Indian Roads Congress [IRC:SP:842009, as revised by IRC:SP:84-2019] deals with the construction and maintenance of four-lane national highways. It prescribes the specifications and standards, which have to be fulfilled in the execution of the works relating to the widening of highways from two-lane to four-lane or the construction of new four-lane national

¶377

¶378

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶379

highways. The scope of the work shall be as defined in the Concession Agreement and the Manual shall be read harmoniously with the intent of the Concession Agreement. The project highway and the project facilities shall conform to the requirements of design and specifications set out in the Manual, which are the minimum prescribed.

¶380

As per the Manual, the Codes, Standards, Technical Specifications and Guidelines applicable for the design and construction of project components include Indian Roads Congress (IRC) Codes, Standards and Guidelines. The objective of the Manual is to construct four-lane highways for all road users as an active infrastructure facility for people for their safety and services and as a catalyst in the development of the economy based on an inclusive approach. The Manual lays down standards for geometric design and general features for four-lane divided carriageways. The geometric design of the project highway shall conform to the standards set out in Section 2 of the Manual, as a minimum. The design speeds given in Table 2.1 of the Manual shall be adopted for various terrain classifications.

¶381

As per the Manual, properly designed intersections shall be provided at all road crossings/junctions, so as to ensure that no

¶382

¶383

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶384

intersection remains without safe and efficient design. All structures shall be designed in accordance with the relevant Codes, Standards and Specifications, Special Publications and Guidelines of the IRC. All materials to be used in works shall be in conformity with the requirements laid down for the relevant item in MoRTH Specifications. Mandatory/regulatory road signs, cautionary/ warning signs and informatory signs shall be provided as given in IRC:67 and Section 800 of MoRTH Specifications. Wherever the project highway alignment is on a curve, there shall be advance cautionary signs for sharp curves and chevron signs at the outer edge of the curve.

¶385

The Manual [IRC:SP:84-2009, as revised by IRC:SP:842019] deals with every minute detail of the construction and maintenance of four-lane national highways. The Manual ( IRC Code) is in the interest of public safety, which would facilitate the smooth movement of traffic. The fulfilment of the requirements in the Manual is mandatory in the execution of the works relating to the widening of a highway from two-lane to four-lane or the construction of a new four-lane national highway. The provisions under the Manual demonstrate the extent of minuteness in the prescription of specifications and standards and the effort to ensure,

¶386

¶387

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶388

not only the appropriate manner of construction and maintenance of a four-lane national highway, but also the safety of road users.

¶389

Section 198A of the Motor Vehicles Act, 1988, inserted by Section 84 of the Motor Vehicles (Amendment) Act, 2019, which came into force with effect from 01.09.2019, vide S.O. 3147(E) dated 30.08.2019, deals with failure to comply with standards for road design, construction and maintenance. As per sub-section (1) of Section 198A, any designated authority, contractor, consultant or concessionaire responsible for the design or construction or maintenance of the safety standards of the road shall follow such design, construction and maintenance standards, as may be prescribed by the Central Government from time to time. As per sub-section (2), where failure on the part of the designated authority, contractor, consultant or concessionaire responsible under sub-section (1) to comply with standards for road design, construction and maintenance, results in death or disability, such authority or contractor or concessionaire shall be punishable with a fine which may extend to one lakh rupees and the same shall be paid to the Fund constituted under Section 164B.

¶390

As per sub-section (3) of Section 198A of the Motor Vehicles Act, for the purposes of sub-section (2), the court shall in

¶391

¶392

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶393

particular have regard to the matters enumerated in clauses (a) to (g), namely, (a) the characteristics of the road, and the nature and type of traffic which was reasonably expected to use it as per the design of road; (b) the standard of maintenance norms applicable for a road of that character and use by such traffic: (c) the state of repair in which road users would have expected to find the road; (d) whether the designated authority responsible for the maintenance of the road knew, or could reasonably have been expected to know, that the condition of the part of the road to which the action relates was likely to cause danger to the road users; (e) whether the designated authority responsible for the maintenance of the road could not reasonably have been expected to repair that part of the road before the cause of action arose; (f) whether adequate warning notices through road signs, of its condition had been displayed; and (g) such other matters as may be prescribed by the Central Government. As per Explanation, for the purposes of Section 198A, the term 'contractor' shall include sub-contractors and all such persons who are responsible for any stage in the design, construction and maintenance of a stretch of road.

¶394

In view of the provisions under sub-section (1) of Section 198A of the Motor Vehicles Act, any designated authority, contractor,

¶395

¶396

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶397

consultant or concessionaire responsible for the design or construction or maintenance of the safety standards of four-lane national highway shall follow the design, construction and maintenance standards in the Manual [IRC:SP:84-2009, as revised

¶398

by IRC:SP:84-2019], which are the minimum prescribed. Where failure on the part of the designated authority, contractor, consultant or concessionaire responsible under sub-section (1) of Section 198A to comply with the aforesaid standards for road design, construction and maintenance has resulted in death or disability, such authority or contractor or concessionaire shall be punishable under sub-section (2) of Section 198A with a fine which may extend

¶399

to one lakh rupees and the same shall be paid to the Fund constituted under Section 164B.

¶400

As per the provisions under th e Manual of Guidelines on

¶401

Land Acquisition for National Highways published by the Government of India, MoRTH, in December, 2018, w hile proposing an alignment, the DPR Consultant must make a specific mention of any hindrance on account of any religious structures like temple, mosque, mazar, church, gurudwara, cemetery, cremation ground coming in the proposed RoW. As per the Manual, analysis in terms of the guidelines is an integral part of DPR preparation. The DPR

¶402

¶403

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶404

Consultants are expected to delineate and propose the most optimal alignment and take care of geometrics of the road to meet safety parameters while finalising the DPR. The DPR Consultants are expected to identify and avoid to the extent feasible all religious structures, public utilities, cremation grounds, private structures in the RoW of the road project that could become major hindrances at the time of project execution.

¶405

In view of the provisions under sub-section (1) of Section 198A of the Motor Vehicles Act, while avoiding to the extent feasible any religious structures, public utilities, etc. as per the provisions under th e Manual of Guidelines on Land Acquisition for National Highways published by the Government of India, MoRTH, the d esignated authority, contractor, consultant or concessionaire responsible for the design or construction or maintenance of the safety standards of four-lane national highway, shall strictly follow the design, construction and maintenance standards in the Manual [IRC:SP:84-2009, as revised by IRC:SP:84-2019], which are the minimum prescribed, in order to ensure the appropriate manner of construction and maintenance of a four-lane national highway and also the safety of road users.

¶406

¶407

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶408

Travancore-Cochin Hindu Religious Institutions Act enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. Clause (c) of Section 2 defines the term ‘incorporated Devaswoms’ to mean the Devaswoms mentioned in Schedule I, and ‘unincorporated Devaswoms’ to mean those Devaswoms including Hindu Religious Endowments whether in or outside Travancore which were under the management of the Ruler of Travancore and which have separate accounts of income and expenditure and are separately dealt with. Thiruvarattukavu Devaswom is an incorporated Devaswom mentioned in Schedule I of the Act, under Varkala Group.

¶409

Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, the administration of incorporated and

¶410

¶411

W.P(C)Nos.14183 of 2021,

¶412

14347 of 2021 & 17244 of 2021

¶413

unincorporated Devaswoms and of Hindu Religious Endowments

¶414

and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board.

¶415

Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per subsection (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction.

¶416

¶417

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶418

Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees.

¶419

Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet

¶420

the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement

¶421

¶422

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶423

and economic betterment of the Hindu community.

¶424

Section 27 of the Act deals with Devaswom properties.

¶425

As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30^th Meenam, 1097 corresponding to 12^th April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage.

¶426

In view of the provisions under the Travancore-Cochin Hindu Religious Institutions Act referred to hereinbefore, the administration of Thiruvarattukavu Devaswom, which is an incorporated Devaswom mentioned in Schedule I of the Act, and all its properties and funds shall vest in the Travancore Devaswom

¶427

¶428

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶429

Board. The Board shall hold and acquire properties for and on behalf

¶430

of Sabarimala Devaswom, under the management of the Board. Subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore

¶431

prior to the first day of July, 1949, in respect of the Sabarimala Devaswom shall vest in and be exercised by the Board in accordance with the provisions of this Act and the Board shall exercise all powers of direction, control and supervision over the Devaswom. The Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Thiruvarattukavu Devi Temple are performed promptly; and to establish and maintain proper facilities in Thiruvarattukavu Devi

¶432

Temple for the devotees. The Board shall, out of the Devaswom Fund, maintain and administer Thiruvarattukavu Devaswom in accordance with recognised usages and meet the expenditure for

¶433

the customary religious ceremonies. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Thiruvarattukavu Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Thiruvarattukavu Devi Temple, according to the usage.

¶434

¶435

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶436

In A.A. Gopalakrishnan v. Cochin Devaswom Board

¶437

[(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fences eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.

¶438

In Travancore Devaswom Board v. Mohanan Nair

¶439

[2013 (3) KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable

¶440

¶441

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶442

institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parents patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings.

¶443

In Nandakumar v. District Collector and others

¶444

[2018 (2) KHC 58] a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘parens patriae’ jurisdiction in Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] . The said decision was referred to and relied on by a Division Bench of this Court in Travancore Devaswom

¶445

Board v. Mohanan Nair [2013 (3) KLT 132] .

¶446

¶447

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶448

As already noticed hereinbefore the construction and maintenance of national highways have to be undertaken strictly in conformity with the specifications and standards prescribed in the relevant Manual published by the Indian Roads Congress. In the instant case, the specifications and standards for four-lane highways are prescribed in IRC:SP:84-2009, as revised IRC:SP:842019. The project highway and the project facilities shall conform to the requirements of design and specifications set out in the Manual, which are the minimum prescribed. The Manual deals with every minute detail of the construction and maintenance of fourlane national highways. The provisions under the Manual demonstrate the extent of minuteness in the prescription of specifications and standards and efforts to ensure not only the appropriate manner of construction and maintenance of a four-lane national highway but also the safety of road users. Moreover, as already noticed hereinbefore, in view of the provisions under Section 198A of the Motor Vehicles Act, which came into force with effect from 01.09.2019 any designated authority, contractor, consultant or concessionaire responsible for design or construction or maintenance of safety standards of four-lane national highway shall follow the design, the construction and maintenance standards

¶449

¶450

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶451

in the Manual [IRC:SP:84-2009 as revised by IRC:SP:84-2019], which are the minimum prescribed, failing which the penal provisions under sub-section (2) of Section 198A of the said Act will be attracted in case the failure to comply with the aforesaid standards has resulted in death or disability.

¶452

The provisions under the Travancore-Cochin Hindu Religious Institutions Act referred to hereinbefore would show that the Travancore Devaswom Board has a statutory duty under Section 15A of the Act to see that the regular rites and ceremonies according to the practice prevalent Thiruvarattukavu Devi Temple are performed promptly. The Board shall arrange for the conduct of daily worship and ceremonies and of the festivals in Thiruvarattukavu Devi Temple according to its usage. In view of the law laid down by the Apex Court in A.A.Gopalakrishnan [(2007) 7 SCC 482] and followed in the decisions referred to hereinabove, it is the duty of the Board to protect and safeguard the properties of Thiruvarattukavu Devi Temple from any wrongful claims, misappropriation, etc. It is the duty of the courts in exercise of its inherent jurisdiction and the doctrine of parens patriae to protect and safeguard the interest and properties of Thiruvarattukavu Devi Temple, which is a religious institution from any wrongful claims,

¶453

¶454

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶455

misappropriation, etc. The provisions under the Travancore-Cochin Hindu Religious Institutions Act or the law laid down in the decisions referred to supra, would not entitle the Travancore Devaswom Board or a devotee of the deity in an incorporated or unincorporated Devaswom under the administration of the Travancore Devaswom Board to challenge the proceedings initiated under the provisions of the NH Act for excluding the temple premises or the temple structures from the acquisition proceedings. However, in view of the provisions under the Manual of Guidelines on Land Acquisition for National Highways published by the Government of India, MoRTH, the Travancore Devaswom Board or a devotee of the deity can raise a contention that while proposing the alignment of the national highway or bypass the DPR Consultant and the competent authorities in NHAI have not taken steps to avoid to the extent feasible the temple structures in the RoW of the road project. However, while considering the said aspect, as per the provisions under the Manual of Guidelines, the DPR consultant and the competent authorities in NHAI have to strictly follow the design, construction and maintenance standards in the Manual [IRC:SP:842009 as revised by IRC:SP:84-2019], which are the minimum prescribed, in order to ensure the appropriate manner of

¶456

¶457

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶458

construction and maintenance of a four-lane national highway and also the safety of road users.

¶459

The specific case of the Travancore Devaswom Board and also the petitioners in the writ petitions is that, Thiruvarattukavu Devi Temple is an ancient temple with known history dating back to 1307 AD. The temple is more than 700 years old. Going by the averments in W.P(C)No.17244 of 2021, the temple was constructed by Sankramatheera, the Emperor who ruled Venad during the period 474-488 M.E. corresponding to 1299-1313 AD. As pointed out in the statement filed by the Project Director, NHAI, apart from the mere assertions in the writ petition, there is nothing on record to show that Thiruvarattukavu Devi Temple is 700 years old.

¶460

Article 49 of the Constitution of India deals with protection of monuments and places and objects of national importance. As per Article 49, it shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be. Article 51A deals with fundamental duties. As per Article 51A(f), it shall be the duty of every citizen of India to value and preserve the rich heritage of

¶461

¶462

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶463

our composite culture.

¶464

Clause (a) of Section 2 of Ancient Monuments and

¶465

Archaeological Sites and Remains Act, 1958 defines 'ancient monument’ to mean any structure erection or monument, or any

¶466

tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and includes- (i) the remains of an ancient monument, (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient inspection of an ancient monument. Clause (d) of Section 2 defines 'archaeological sites and remains' to mean any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than one hundred years, and includes-(i) such portion of land adjoining the area as may be required for fencing or covering in or otherwise preserving it, and (ii) the means of access to, and convenient inspection of the area. As per Section 3 of the Act, all ancient and historical monuments and all archaeological sites and

¶467

¶468

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶469

remains which have been declared by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 or by Section 126 of the State Reorganisations Act, 1956 to be of national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purpose of this Act. Section 4 of the Act deals with the power of the Central Government to declare any ancient monument or archaeological site and remains not included in Section 3 to be of national importance.

¶470

Clause (a) of Section 2 of the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968 defines ‘ancient monument’ to mean any structure, erection or monument, or any tumulus or place of internment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years and includes- (i) the remains of an ancient monument, (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient

¶471

¶472

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶473

inspection of, an ancient monument, but does not include any ancient or historical monument declared by or under any law made

¶474

by Parliament to be of national importance. Clause (d) of Section 2 defines ‘archaeological sites and remains’ to mean any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than one hundred years, and includes- (i) such portion of land adjoining the area as may be required for fencing or covering in or otherwise preserving it, and (ii) the means of access to, and convenient inspection of, the area, but does not include any archaeological site or remains declared by or under any law made by Parliament to be of national importance. As per sub- section (1) of Section 3 of the Act, all ancient and historical monuments which have been declared under the Ancient Monuments Preservation Act, 1904 or the Travancore Ancient Preservation Act, 1112 or the Ancient Monuments Preservation Act, 1110 (Cochin Act) to be protected monuments, but which have not been declared by or under any law made by Parliament to be of national importance, shall be deemed to be protected monuments

¶475

for the purposes of this Act. As per sub-section (2) of Section 3, any area which has been declared under any of the Acts specified in

¶476

¶477

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶478

sub-section (1) to be a protected area, but which has not been declared by or under any law made by Parliament to be of national

¶479

importance, shall, if such area is an archaeological site and remains as defined in this Act, be deemed to be a protected area for the purposes of this Act. Section 4 of the Act deals with the power of the State Government to declare any ancient monument or archaeological site and remains to be a protected monument or a protected area.

¶480

Going by the averments in W.P(C)No.14183 of 2021, Koyikkal Palace, which is situated adjacent to Thiruvarattukavu Devi Temple, is being taken over by the Archaeological Department. Along with W.P(C)No.14347 of 2021, the petitioners have placed on record Ext.P14 communication dated 04.06.2021 of the Superintendent of Archaeologist, Archaeological Survey of India, Kerala Circle, to the Project Director of NHAI requesting him to look into the grievance of Attingal History Lovers’ Association in Ext.P13 representation dated 31.05.2021 for preservation of all historical monuments in and around Attingal, including Thiruvarattukavu Devi Temple and to change the present alignment of Attingal Bypass to save the heritage structure. Ext.P14 communication relied on by the petitioners in W.P(C)No.14347 of 2021 would not show that

¶481

¶482

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶483

Thiruvarattukavu Devi Temple is an ancient monument of historic interest or national importance. Apart from the mere assertions in the writ petitions, there is nothing on record to show that Thiruvarattukavu Devi Temple is 700 years old, which is an ancient monument of historic interest or national importance, which has to be preserved in view of the provisions contained in Articles 49 and 51A(f) of the Constitution of India and also the provisions referred to hereinbefore of the Ancient Monuments and Archaeological Sites and Remains Act. In the absence of proper pleadings, we do not propose to consider the aforesaid issue in these writ petitions.

¶484

Ext.P12 order dated 15.05.2021 in W.P.(C)Nos.14183 of 2021 and 14347 of 2021 [Ext.P7 in W.P.(C)No.17244 of 2021] is one passed by the Competent Authority pursuant to the directions contained in Ext.P10 judgment of this Court dated 19.01.2021 in W.P.(C)No.13037 of 2020 and connected matters. Paragraphs 5 to

¶485

8 of Ext.P10 judgment read thus;

¶486

“5. The learned Standing Counsel drew our attention to paragraph 24 of the decision in Dr.Kushala Shetty's case (supra) to canvass the position that the scope of interference in respect of acquisition of properties for the purpose of National Highways is very limited. Virtually, the decision in P.V.Krishnamoorthy's case (supra) also reiterated the same position. True that going by the position laid down in those decisions scope of

¶487

¶488

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶489

interference in respect of acquisition for the purpose of National Highways, is very minimal. At the same time, a scanning of the aforesaid decisions would reveal that the Apex Court had not laid down a law making any interference in the matter of acquisition for National Highways absolutely impossible or impermissible. In fact, the learned counsel also did not canvass such a position. True that, when National Highways Authority implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields the Courts are not at all equipped to decide upon the viability and feasibility of the particular project overruling such studies. Respondents 1 and 2 are therefore justified in taking a stand relying on the decisions Dr.Kushala Shetty's case (supra) and in Krishnamoorthy's case (supra) that the scope of judicial review in such circumstances will be very limited. It is to be noted that the Apex Court held that Courts could nullify the acquisition of land in rarest of rare cases in respect of any particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. The Apex Court also held that the Courts shall not ordinarily interfere with such acquisition unless the power is being exercised malafide or for collateral purposes or the decision is dehors the Act, irrational or otherwise unreasonable or so-called purpose is not public purpose at all and fraud of statute is manifest. In other words, it is held that Courts shall not sit over such decisions as a Court of appeal. Bearing in mind the aforesaid decisions as also the contentions of respondents 1 and 2, which are virtually endorsed by the third respondent we will consider the contentions of the petitioners.

¶490

¶491

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶492

At the very outset it is to be noted that as relates the location in question only a notification under Section 3A(1) of the Act was published and declaration under Section 3D of the Act is yet to be published. We have already taken note of the fact that one of the contentions of the petitioners is that before reaching the sector in question (Ch:530 + 800 and Ch:530 + 900) in respect of the same project corridor while going on with the acquisition proceedings alignment was changed when it was found that the then proposed alignment in respect of that location would affect property belonging to a retired Revenue Officer. Along with the writ petition filed by the Travancore Devaswom Board viz., W.P.(C)No.13037 of 2020 a Note of the District Collector dated 20.6.2016 is produced as Ext.P13. Paragraph 1 of the aforesaid Note assumes relevance in this context. It is stated therein thus:-

¶493

“1. At Kazhakkoottam, the official assisting the NHAI, one Shri.Rajappan Nair, who was a Deputy Tahsildar in revenue department owns a three storied building worth crores of rupees on the eastern side of the road. This structure remains untouched and half of the mosque opposite to his property is to be demolished and land acquired. This has created heavy protest against land acquisition from the public in this stretch.”

¶494

(underline supplied)

¶495

As per the said Note vast tract of Government land on the side of the existing National Highway are not seen included in the alignment and on the other hand, Patta land on the opposite side alone has been included. To exemplify the same reference was made in respect of locations at Kadambattukonam and Kaniyapuram. It is thus obvious that whatever be the reason in respect of the project in question during the course of acquisition realignment was effected deviating from the original

¶496

¶497

W.P(C)Nos.14183 of 2021, 14347 of 2021 & 17244 of 2021

¶498

proposal. That apart, it would reveal that what is contained in the report of M/s.SMEC India Private Limited relating the direction of the State Government to design the alignment without doing any damage to religious structures, was not adhered to, at Kazhakkoottam and the same situation is likely to occur in the present location as well. The very case of the Travancore Devaswom Board is that in respect of the location in question but for the realignment proposed under Ext.P2 acquisition as proposed, if pursued, would have caused only lesser damage to the properties belonging to the temple. However, if the presently proposed alignment is proceeded with, it would cause acquisition of 'Pattupura', 'Seevelippatha', 'Anakkottil' and 'Kannimoola' in the south western corner of the temple. Going by the faith of Hindus damage or destruction of the aforesaid structures would diminish and destroy 'Kshethra Chaithanyam' viz., liveliness.

¶499

The contention of the petitioners is that if the earlier alignment was proceeded with in respect of the location in question it would have avoided acquisition of Kannimoola as also the aforementioned important structures of the temple. It would reveal that the Travancore Devaswom Board as also the other petitioners are not totally against the acquisition of the properties for the purpose of NH-66 at Attingal Bypass. The report of M/s.SMEC India Private Limited, extracted hereinbefore, reveals the stand of the State Government in regard to religious structures and also the stand of the DPR consultant while designing the alignment. However, the Note of the District Collector referred to would indicate their infraction, seemingly, in avoidable circumstances. Be that as it may, here, declaration under Section 3D of the Act is yet to be made.

¶500

¶501

¶502

According to the petitioners, the earlier realignment, if finalised would have caused only minimum damage to the properties of the temple and at any rate, it would not have caused damage to the aforementioned structures of the temple including Kannimoola. It is the specific case of the Travancore Devaswom Board that as early as in 2016 itself they filed an objection which was not actually taken up and considered. In this context it is also relevant to refer to Section 3C of the National Highways Act which deals with 'hearing of objections' pursuant to the issuance of notification under Section 3A(1) of the Act. It is also a fact that in the aforesaid sector in respect of the property in question and the nearby places declaration under Section 3D of the Act is yet to be made. In other words, in respect of places covering Ch:530 + 800 and Ch:530 + 900 it is not published. When that be the circumstances, we are of the view that without making any observation touching the merits of the contentions, taking note of the purpose of the provision under Section 3C of the National Highways Act, it is only proper to direct the third respondent, the competent authority to consider the objections of the petitioners as also the stand of the National Highways Authorities viz., respondents 1 and 2 in W.P.(C)No.13037 of 2020 for resisting the aforesaid contentions before issuing declaration under Section 3D of the Act. 8. In view of what is stated above, the third respondent is directed to consider the objections filed by the petitioners including the Travancore Devaswom Board as also the stand of the National Highways Authority of India as also its Project Director before issuing declaration under Section 3D of the Act in respect of places covering Ch: 530 + 800 and Ch: 530 + 900. The aforesaid parties shall also be given an opportunity of being

¶503

¶504

¶505

heard. After considering such objections appropriate orders thereon shall be passed expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Till such a decision is taken by the competent authority under Section 3C of the Act no further steps shall be taken in respect of the sector viz. CH: 530 + 800 and CH: 530 + 900 and it is made clear that till such a decision is taken the interim order passed in these writ petitions, will continue to be in force.”

¶506

Paragraphs 5 to 9 of Ext.P12 order dated 15.05.2021 in W.P.(C)Nos.14183 of 2021 and 14347 of 2021 [Ext.P7 in W.P.(C)No.17244 of 2021] issued by the Competent Authority read thus:

¶507

“5. In the hearing, the Kshetra Samrakshana Samithy and the representatives of Royal Family raised more or less the same contentions. As per them, the proposed alignment the road extends inside the 'Chuttumathil' close to the 'Pradkashna Vazhy' and Pattupura situated to the south western corner. Seevalipatha' and compound wall of the temple will also be affected as per the present acquisition. As the Temple is constructed as per "Thantra Thachusastra " principles, if any part of the structure is demolished it will be fatal to the very existence of the temple and by doing so the thantra principles by which the temples established will be violated and the same be avoided. They have also stated that the temple is one of the foremost temples in Thiruvananthapuram district and is of great historical and heritage importance. The temple which is about 700 years of heritage is the ancestral Temple of Travancore Royal family. The famous ritual, 'Ariyittu Vazhcha' which was

¶508

¶509

¶510

started before centuries is still continuing in the temple by Royal Family. The temple is an ancient monument to be protected as remembrance of our historic prominence and cultural heritage. The part of the temple Pattupura, Seeveli Patha, Anakottil and Compound wall are included in the area sought to be acquired. The destruction of the above structures will deplete the Kshetrachaithanyam. Besides this, Kannimoola, the auspicious point of the entire temple structure is marked for acquisition; it will affect the sanctity and the power of the deity itself. A slight change in the present alignment will protect all the temple structures which boast 700 years of invaluable heritage. They pointed out that a change of 8 meters along barren land of the temple here would save a historical monument. They have also pointed out that in all the previous notifications, survey number 642 was marked as Government Temple but in the latest notification it is private land. A place of worship can be shifted and rebuilt but a monument of history cannot be shifted or rebuilt. It is to be preserved for the coming generations. The importance of the ancient structures is essential for the rituals and hence to spare from acquisition.

¶511

National Highway Authority of India, the requisitioning authority on the other hand has reported that every possible effort to minimize the loss of temple property has been taken and the main temple structure is not at all affected. The alignment was fixed without making any damages to the main temple structures. The design was done by adopting all applicable technical specifications and design parameters. They have pointed out that there are many cases in which places of worships have been rebuilt or shifted as part of the development of National Highway. The notification under section 3D of the

¶512

¶513

¶514

14347 of 2021 & 17244 of 2021

¶515

Act has published for the entire stretch of Kazhakuttom to Kadmabattukonam except for the extend sought to be acquired from the temple premises and now in 3G award stage. In the case of change in alignment, the present alignment has to be altered about 500 meters to and from the temple premises. It will certainly affect many residential buildings and will cause hardships to those who lose their homestead and will bring about huge financial burden to the Requisitioning Authority.

¶516

For the evaluation of the quantum of the loss to the general public in the case of an alignment change, a report was called for from M/s.SMEC, the consulting agency prepared the alignment and the agency vide the report dt 19.09.2020 has opined that any alteration in of alignment will result in the acquisition of increased number of residential buildings and will certainly cause an overall cost upsurge.

¶517

Considering the averments raised by the petitioners and the Requisitioning Authority, the Competent Authority is convinced that, in the case of alignment change, a handful of people will have to be displaced and will be put to irreparable loss, The competent Authority cannot turn a blind eye on the face of their misery. Moreover, the additional burden to the public exchequer and the urgency of the land also have to be considered.

¶518

Considering all these aspects, the competent Authority is of opinion that the demand for alignment change is not feasible at this juncture. Hence orders are hereby issued, overruling the demand for any alignment change. Further steps in this connection will be taken after intimation to the Hon'ble High Court of Kerala.”

¶519

Before passing Ext.P12 order the competent authority

¶520

conducted a personal hearing on 15.02.2021 and thereafter another

¶521

¶522

¶523

personal hearing was conducted on 20.02.2021. The document marked as Ext.P13 in W.P(C)No.14183 of 2021 [Ext.P11 and P11(a) to P11(l) in W.P.(C)No.14347 of 2021] are Google images of the stretch from Ch:530+100 to Ch:531+100 (1.2 km) showing every 100-meter stretch. Going by the averments in the writ petitions the aforesaid Google images were placed before the Competent Authority during the course of personal hearing conducted on 15.02.2021 and 20.02.2021, in support of the contention that a slight deviation in the proposed alignment of Attingal Bypass would save the structures of Thiruvarattukavu Devi Temple. Fig.1 is the Google image showing the alignment of national highway from Ch:530+100 to Ch:531+200 (1.2 km). Fig.2 to Fig.13 are Google images of every 100 mtr stretch. A brief note on the alignment of each 100 mtr stretch is provided below Fig.2 to Fig.13, in which the number of homes/buildings in the current alignment and those which may be affected on change of alignment are furnished as suggested by the petitioners. As per Fig.9 Kollampuzha Moorthy Temple is unaffected by the change of alignment suggested by the petitioners. The Google images produced as Ext.P13 in W.P(C)No.14183 of 2021 along with notes [for Fig.2 to Fig.13] are reproduced hereunder;

Fig.1

Ch:530+100 to Ch:531+200

¶530

Fig.2

¶531

Ch: 530+100 to Ch: 530+200

¶532

Number of homes nearest to NH on the left side – 1 Number of affecting homes in the current alignment – 0 Number of homes that may be affected after changing the alignment to left - 0

¶533

Distance of this reach from the temple - 700 meter

¶534

Home 1 in the figure will not be affected after changing alignment

Fig.3

Ch: 530+200 to Ch: 530+300

¶539

Number of affecting homes in the current alignment - 0 Number of affecting homes that may be affected after changing the alignment to left - 0

¶540

Distance of this reach from the temple - 600 meter

Fig.4

Ch: 530+300 to Ch: 530+400

¶545

Number of affecting homes in the current alignment - 0

¶546

Number of homes that may be affected after changing the alignment to left -0

¶547

Distance of this reach from the temple - 500 meter

Fig.5

Ch: 530+400 to Ch: 530+500

¶552

Number of affecting homes in the current alignment - 0 Number of homes that may be affected after changing the alignment to left - 0

¶553

Distance of this reach from the temple - 400 meter Chicken stall is already included in the alignment and the sawmill is not going to be affected after changing the alignment

Fig.6

Ch: 530+500 to Ch: 530+600

¶558

Number of affecting buildings included in the current alignment – 5 KR Motor Workshop, Home 1, Home 2, Home 3 (partially constructed building)

¶559

Number of homes that may be affected after changing the alignment to left - 0

¶560

Number of homes that may be excluded after changing the alignment to left - 1 (Home 3)

¶561

Distance of this reach from the temple - 300 meter

¶562

Kilu Hollow Brick and Home 4 are not going to be affected

Fig.7

Ch: 530+600 to Ch: 530+700

¶567

Number of affecting buildings included in the current alignment - 0 Number of homes that may be affected after changing alignment to left - 0

¶568

Number of homes that may be excluded after changing the alignment to left - 0 (Home 3)

¶569

Distance of this reach from the temple - 200 meter

¶570

Left side region inside oval-shape is an area with no residents. It is approximately more than 2 acres of land, which is not utilised for the alignment. If the alignment was through that region, three homes could be avoided from the alignment (Home 1, Home 2 and Home 3)

100

Fig.8

Ch: 530+700 to Ch: 530+800

¶575

Number of affecting buildings included in the current alignment - 7 (Home 5, Home 6, Home 7, Home 8, Home 9, Home 10, Home 11) Number of homes that may be affected additionally after changing the alignment to left - 1 (Home 10)

¶576

Number of homes that may be excluded after changing the alignment to left - 1 (Home 8)

¶577

Distance of this reach from the temple - (temple is in this reach)

101

Fig.9

Ch: 530+800 to Ch: 530+900

¶582

Number of affecting buildings included in the current alignment – 5 (Home 14, Home 17, Home 18, Home 19, and one old building)

¶583

Number of homes that may be affected additionally after changing alignment to left - 1 (Home 13)

¶584

Number of homes that may be excluded after changing the alignment to left - 1 (Home 17)

¶585

Distance of this reach from the temple - 0 (temple is in this reach) Area in oval-shape represents the area of Kollampuzha Moorthi Temple and alignment change will not affect this temple.

102

Fig.10

Ch: 530+900 to Ch: 531+000

¶590

Number of affecting buildings included in the current alignment - 0 Number of homes that may be affected additionally after changing the alignment to left - 0

¶591

Number of homes that may be avoided after changing the alignment to left - 0

¶592

Distance of this reach from the temple - 100 Paddy areas started

103

Fig.11

Ch: 531+000 to Ch: 531+100

¶597

Number of affecting buildings included in the current alignment - 0 Number of homes that may be affected additionally after changing alignment to left-0

¶598

Number of homes that may be excluded after changing the alignment to left - 0

¶599

Distance of this reach from the temple - 200 Paddy areas

104

Fig.12

Ch: 531+100 to Ch: 531+200

¶604

Number of affecting buildings included in the current alignment - 0 Number of homes that may be affected additionally after changing the alignment to left-0

¶605

Number of homes that may be excluded after changing the alignment to left - 0 Distance of this reach from the temple - 300 Paddy areas

105

Fig.13

Ch: 531+200 to Ch: 511+300

¶610

Number of affecting buildings included in the current alignment - 0 Number of homes that may be affected additionally after changing alignment to left-0

¶611

Number of homes that may be excluded after changing the alignment to left - 0

¶612

Distance of this reach from the temple-400 meter

¶613

The document marked as Ext.P9 in W.P(C)No.14347 of

¶614

2021 is the written submission made by the Temple Advisory Committee of Thiruvarattukavu Devi Temple, which is constituted

¶615

under Section 31A of the Travancore-Cochin Hindu Religious

¶616

106

¶617

¶618

Institutions Act. The document marked as Ext.P10 in the said writ petition is a sketch showing NHAI alignment and the proposed alignment, in order to show that with a slight deviation of the alignment the entire temple structure could be saved.

¶619

The document marked as Ext.P11 in W.P.(C)No.14183 of 2021 is a copy of the statement filed by the Assistant Devaswom Commissioner, Varkala, before the Competent Authority, raising the very same contentions. Going by the averments in that writ petition, a rough sketch showing the alignment was produced before the Competent Authority along with Ext.P11 statement. In paragraph 17 of W.P(C)No.14347 of 2021, it is averred that, on 20.02.2021, both parties were present during the hearing. The petitioners made Ext.P9 written submission along with Ext.P10 alternative sketch and Exts.P11 and P11(a) to P11(l) Google images showing the relevant area in order to substantiate the feasibility of the suggested path. In paragraph 18 of that writ petition, it is alleged that, even without taking into consideration Ext.P10 sketch of alternative alignment and Ext.P11 series of Google images, the Competent Authority by Ext.P12 order rejected the objections made by the petitioners.

¶620

Paragraph 52 of the statement filed by the Project Director, NHAI (7^th respondent) deals with the allegations contained

¶621

107

¶622

¶623

in paragraph 17 of W.P(C)No.14347 of 2021. Paragraph 52 of the statement reads thus;

¶624

“52. The allegations contained in paragraphs 15, 16 and 17 are refuted. The objections have been considered within the parameters of the statutory provisions. The acquisition is not carried out by the 3^rd respondent. The acquisition is being done by the Central Government. The 3^rd respondent is only a statutory authority conferred with quasi-judicial functions to consider the objections within the parameters or confines of the statutory provisions. The powers and jurisdiction of the 3^rd respondent are limited and he cannot consider any suggestion or objection not contemplated by the statutory provisions. It is preposterous to allege that the Central Government has an agenda against the temple and its properties and is influenced by private parties who want to save their properties from acquisition. In the absence of any specific pleading the allegations cannot be contended more so as the said allegations are in the realm of surmises and conjectures. The allegation that the 3^rd respondent was convinced about the destruction of the temple due to the acquisition proceedings are merely unsubstantiated allegations and have to be rejected. The alternates routes suggested cannot be considered at this juncture and these grounds have already been considered in the foregoing paragraphs.”

¶625

Paragraph 53 of the statement filed by the Project

¶626

¶627

contained in paragraph 18 of that writ petition, which were made

¶628

108

¶629

¶630

14347 of 2021 & 17244 of 2021

¶631

with specific reference to Exts.P11 and P11(a) to P11(l) Google

¶632

images. Paragraph 53 of the statement reads thus;

¶633

“53. The allegations contained in paragraph 18 are refuted. The allegation that the answering respondents and their officers did not consider the alternate routes is an unsubstantiated allegation made merely to prejudice the mind of the Hon’ble Court. To allege that the 3^rd respondent went by the dictates of the political authority is a very reckless statement with no foundation at all.”

¶634

In Breen v. Amalgamated Engineering Union

¶635

[1971 (1) All. E.R. 1148] Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration.

¶636

In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120] it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decisiontaker to the controversy in question and the decision or conclusion arrived at.

¶637

In Commissioner of Police, Bombay v. Gordhandas

¶638

Bhanji [AIR 1952 SC 16] the Apex Court has held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the

¶639

officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public

¶640

109

¶641

¶642

authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in Gordhandas Bhanji’s case (supra) , the Apex Court has reiterated in Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405] that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes

¶643

to Court on account of a challenge, gets validated by additional grounds later brought out.

¶644

Following the principle laid down in the decisions referred to above, the Apex Court in Chairman and Managing Director,

¶645

United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364]

¶646

held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of

¶647

110

¶648

¶649

the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order

¶650

made, in other words, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance.

¶651

A Constitution Bench of the Apex Court has laid down in Krishna Swami v. Union of India [(1992) 4 SCC 605] that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India.

¶652

In B.A. Linga Reddy v. Karnataka State Transport Authority [(2015) 4 SCC 515] the Apex Court after referring to

¶653

111

¶654

¶655

its earlier judgments on the subject has reiterated that, the rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Article 14 and Article 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that, there is no consideration of the objections except mentioning the arguments of the rival parties and that objections both factual and legal have not been considered much less reasons assigned to overrule them.

¶656

The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as

¶657

112

¶658

¶659

elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some

¶660

reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority.

¶661

As already noticed hereinbefore, the provisions under the Travancore-Cochin Hindu Religious Institutions Act or the law laid down by the Apex Court in A.A. Gopalakrishnan [(2007) 7 SCC 482] and followed by this Court in Mohanan Nair [2013 (3) KLT 132] and Nandakumar [2018 (2) KHC 58] , would not entitle the Travancore Devaswom Board or a devotee of the deity in an incorporated or unincorporated Devaswom under the administration of the Travancore Devaswom Board to challenge the proceedings initiated under the provisions of the NH Act for excluding the temple premises or the temple structures from the acquisition proceedings. However, in view of the provisions under the Manual of Guidelines on Land Acquisition for National Highways published by the Government of India, MoRTH, the Travancore Devaswom Board or a devotee of the deity can raise a contention that, while proposing the alignment of the national highway or

¶662

113

¶663

¶664

bypass the DPR Consultant and the competent authorities in NHAI have not taken steps to avoid to the extent feasible the temple structures in the RoW of the road project. However, while considering the said aspect, as per the provisions under the Manual of Guidelines, the DPR consultant and the competent authorities in NHAI have to strictly follow the design, construction and maintenance standards in the Manual [IRC:SP:84-2009 as revised by IRC:SP:84-2019], which are the minimum prescribed, in order to ensure the appropriate manner of construction and maintenance of a four-lane national highway and also the safety of road users. In view of the provisions under sub-section (1) of Section 198A of the Motor Vehicles Act, while avoiding to the extent feasible any religious structures, public utilities, etc. as per the provisions under t he Manual of Guidelines, the designated authority, contractor, consultant or concessionaire responsible for the design or construction or maintenance of the safety standards of four-lane national highway, shall strictly follow the design, construction and maintenance standards in the Manual [IRC:SP:84-2009, as revised by IRC:SP:84-2019], which are the minimum prescribed, in order

¶665

to ensure the appropriate manner of construction and maintenance of a four-lane national highway and also the safety of road users.

¶666

114

¶667

¶668

In Kushala Shetty [(2011) 12 SCC 69] the Apex

¶669

Court opined that, NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. NHAI comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to the development and maintenance of highways after a thorough study by experts in different fields. Detailed project reports are prepared, keeping in view the relative factors including the intensity of heavy vehicular traffic and larger public interest. In the said decision, the Apex Court held that the court can nullify the acquisition of the land only in the rarest of rare cases if it is found that the particular project or the particular alignment is ex facie contrary to the mandate of law or tainted with mala fides.

¶670

Having considered the submissions made by the learned counsel on both sides, we find that the objections raised by the Travancore Devaswom Board and also the petitioners in W.P(C)Nos.14347 of 2021 and 17244 of 2021 regarding the alignment of Attingal Bypass between Ch:530+800 and Ch:530+900 requires reconsideration by a competent officer nominated by the Secretary, Ministry of Road Transport and

¶671

115

¶672

¶673

Highways, who shall take an appropriate decision in the matter,

¶674

after affording an opportunity of being heard to the petitioners in these writ petitions and the concerned officers of NHAI and the DPR Consultant.

¶675

In the result, these writ petitions are disposed of by setting aside the order dated 15.05.2021 of the Special Deputy Collector and Competent Authority [Ext.P12 in W.P(C)Nos.14183 of 2021 and 14347 of 2021 and Ext.P7 in W.P(C)No.17244 of 2021] for the reason that it is one issued in violation of the principles of natural justice, without giving due consideration to the points in controversy. The Secretary, Ministry of Road Transport and Highways is directed to nominate a competent officer in the said Ministry having the necessary expertise, to reconsider the objections raised by the petitioners regarding the alignment of Attingal Bypass between Ch:530+800 and Ch:530+900, who shall take an appropriate decision on the said objections, taking note of the law laid down hereinbefore, after affording the petitioners in these writ petitions and the concerned officers of NHAI and the DPR Consultant an opportunity of personal hearing. It would be open to both sides to submit written submissions before the officer nominated by the Secretary, Ministry of Road Transport and Highways, raising legal

¶676

116

¶677

¶678

and factual contentions, which shall be dealt with appropriately, while taking a decision on the objections raised by the petitioners.

¶679

A decision in this regard shall be taken, as expeditiously as possible,

¶680

at any rate, within a period of two months from the date of receipt

¶681

of a certified copy of this judgment.

¶682

Sd/-

¶683

ANIL K. NARENDRAN, JUDGE

¶684

Sd/- P.G. AJITHKUMAR,

JUDGE

bkn/-

117

14347 of 2021 & 17244 of 2021

¶690

APPENDIX OF WP(C) 14183/2021

¶691

`PETITIONER EXHIBITS` `Exhibit P1`	`TRUE COPY` `SETTLEMENT`	`OF THE RELEVANT PORTION` `REGISTER OF ATTINGAL VILLAG`	`OF THE` `E`
`Exhibit P2`	`TRUE COPY` `NOTIFICATIO` `MATHRUBHUMI`	`OF THE RELEVANT PORTION` `N DATED 28.1.2020 PUBLIS` `DAILY DATED 14.3.2020`	`OF THE` `HED IN`
`Exhibit P3`	`TRUE COPY` `NOTIFICATIO` `MATHRUBHUMI`	`OF THE RELEVANT POTION` `N DATED 8.6.2018 PUBLIS` `DAILY DATED 29.6.2018`	`OF THE` `HED IN`
`Exhibit P4`	`TRUE COPY` `5TH RESPON` `4.7.2016`	`OF THE OBJECTION SUBMITTED` `DENT BY PETITIONER BOARD`	`TO THE` `DATED`
`Exhibit P5`	`TRUE COPY` `5TH RESPON` `20.4.20217`	`OF THE OBJECTION SUBMITTED` `DENT BY PETITIONER BOARD`	`TO THE` `DATED`
`Exhibit P6`	`TRUE COPY O` `TO THE SECR`	`F THE REQUEST DATED 8.7.201` `ETARY TO THE MINISTER FOR P`	`9 GIVEN` `.W.D.`
`Exhibit P7`	`TRUE COPY` `SUBMITTED T`	`OF THE OBJECTION DATED 5` `O THE 4TH RESPONDENT`	`.6.2020`
`Exhibit P8`	`TRUE COPY` `LAYOUT OF` `PREMISES PR` `BOARD.`	`OF THE SKETCH SHOWING THE` `ACQUISITION MARKED IN THE` `EPARED BY THE HEAD SURVEYOR`	`PRESENT` `TEMPLE` `OF THE`
`Exhibit P9`	`TRUE COPY` `PETITIONER` `RESPONDENT`	`OF THE HEARING NOTE SUBMI` `BOARD BEFORE THE OFFICE` `ON 24.6.2020`	`TTED BY` `OF 4TH`
`Exhibit P10`	`TRUE COPY O` `DATED 19.1.`	`F THE JUDGMENT IN WPC NO 130` `2021`	`37/2020`
`Exhibit P11`	`TRUE COPY O` `OF THE BO` `LA(NH) THIR`	`F THE STATEMENT SUBMITTED ON` `ARD BEFORE THE DEPUTY CO` `UVANANTHAPURAM DATED NIL`	`BEHALF` `LLECTOR`
`Exhibit P12`	`TRUE COPY` `DATED 15.5.`	`OF THE PROCEEDINGS NO B1.1` `2021 ISSUED BY THE 4TH RESP`	`58/2021` `ONDENT`
`Exhibit P13`	`TRUE COPY` `FROM CH 530` `EVERY 100 M`	`OF THE GOOGLE IMAGE OF THE` `+100 TO CH 531+200 (1.2 KM)` `ETER STRETCH`	`STRETCH` `SHOWING`
`Exhibit P14`	`TRUE COPY` `RESPONDENT`	`OF THE NOTE SUBMITTED BY` `DATED 20.6.2016`	`THE 5TH`

¶692

118

¶693

¶694

APPENDIX OF WP(C) 14347/2021

¶695

PETITIONER EXHIBITS
Exhibit P1TRUE COPY OF THE RELEVANT PORTIONS OF THE
FIRST NOTIFICATION DATED 16.2.2010 OF
SY.642 OF ATTINGAL VILLAGE.
Exhibit P2TRUE COPY OF THE RELEVANT PORTIONS OF
NOTIFICATION DATED 27.3.2012.
Exhibit P3TRUE COPY OF THE RELEVANT PORTIONS OF
NOTIFICATION DATED 28.1.2020.
Exhibit P4TRUE COPY OF THE OBJECTION DATED 19.3.2020
SUBMITTED BY THE 2ND PETITIONER BEFORE THE
3RD RESPONDENT.
Exhibit P5TRUE COPY OF THE REPRESENTATION DATED
21.3.2020.
Exhibit P6TRUE COPY OF THE REPRESENTATION DATED
4.6.2020 SUBMITTED ON BEHALF OF 5TH
RESPONDENT.
Exhibit P7TRUE COPY OF THE NOTICE NO.B1-231/2020
DATED 9.6.2020.
Exhibit P8TRUE COPY OF THE COMMON JUDGMENT OF THIS
HON'BLE COURT IN WPC NO.13683/2020, WPC
NO.13371/2020 AND WPC NO.13037/2020 DATED
19.1.2021.
Exhibit P9TRUE COPY OF THE WRITTEN SUBMISSION MADE
BY THE PETITIONERS BEFORE 3RD RESPONDENT.
Exhibit P10TRUE COPY OF THE ALTERNATE ALIGNMENT
SKETCH.
Exhibit P11TRUE COPY OF THE GOOGLE MAP SCREENSHOTS
AND DESCRIPTION.
Exhibit P11(A)TRUE COPY OF THE GOOGLE MAP SCREENSHOTS
AND DESCRIPTION.
Exhibit P11(B)TRUE COPY OF THE GOOGLE MAP SCREENSHOTS
AND DESCRIPTION.
Exhibit P11(C)TRUE COPY OF THE GOOGLE MAP SCREENSHOTS
AND DESCRIPTION.
Exhibit P11(D)TRUE COPY OF THE GOOGLE MAP SCREENSHOTS
AND DESCRIPTION.
Exhibit P11(E)TRUE COPY OF THE GOOGLE MAP SCREENSHOTS
AND DESCRIPTION.
Exhibit P11(F)TRUE COPY OF THE GOOGLE MAP SCREENSHOTS
AND DESCRIPTION.
Exhibit P11(G)TRUE COPY OF THE GOOGLE MAP SCREENSHOTS
AND DESCRIPTION.

¶696

119

¶697

¶698

`Exhibit P11(H)`	`TRUE COPY OF THE` `AND DESCRIPTION.`	`GOOGLE`	`MAP SCREENSHOTS`
`Exhibit P11(I)`	`TRUE COPY OF THE` `AND DESCRIPTION.`	`GOOGLE`	`MAP SCREENSHOTS`
`Exhibit P11(J)`	`TRUE COPY OF THE` `AND DESCRIPTION.`	`GOOGLE`	`MAP SCREENSHOTS`
`Exhibit P11(K)`	`TRUE COPY OF THE` `AND DESCRIPTION.`	`GOOGLE`	`MAP SCREENSHOTS`
`Exhibit P11(L)`	`TRUE COPY OF THE` `AND DESCRIPTION.`	`GOOGLE`	`MAP SCREENSHOTS`
`Exhibit P12`	`TRUE COPY OF T` `RESPONDENT DATED`	`HE PROC` `15.5.202`	`EEDINGS OF 3RD` `1.`
`Exhibit P13`	`TRUE COPY OF THE`	`LETTER D`	`ATED 31.5.2021.`
`Exhibit P13(A)`	`TRUE COPY OF THE`	`E-MAIL L`	`ETTER.`
`Exhibit P14`	`TRUE COPY OF THE` `4.6.2021.`	`COPY OF`	`THE LETTER DATED`
`Exhibit P15`	`TRUE COPY OF THE`	`VIDEO CO`	`PIED IN THE DVD`

¶699

120

¶700

¶701

APPENDIX OF WP(C) 17244/2021

¶702

PETITIONER EXHIBITS
Exhibit P1TRUE COPY OF THE NOTIFICATION PUBLISHED IN
THE MATHRUBHUMI DAILY DATED 14.03.2020.
Exhibit P2TRUE COPY OF THE SKETCH SHOWING THE
ALIGNMENT.
Exhibit P3TRUE COPY OF THE OBJECTIONS DATED
04.06.2020 FILE BY THE 2ND RESPONDENT
BEFORE THE 4TH RESPONDENT.
Exhibit P4TRUE COPY OF THE RECEIPT DATED 05.06.2020
ISSUED BY THE 4TH RESPONDENT.
Exhibit P5TRUE COPY OF THE LETTER OF THE THANTHRI
DATED 09.07.2018.
Exhibit P6TRUE COPY OF THE COMMON JUDGMENT WPC NO.
13683/2020, WPC NO.13371/2020 AND WPC
13034/2020 DATED 19.01.2021.
Exhibit P7TRUE COPY OF THE PROCEEDINGS OF THE 4TH
RESPONDENT DATED 15.05.2021.

Travancore Devaswom Board v. Union of India

Case brief

What is this about?

What did the court decide?

Travancore Devaswom Board v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ponnamma Lekshmi Narayani Vs P.Lalitha Mani

Kandoth Jameela Vs Government of Kerala

Roy Thomas, Vs Augustine Kuruvilla

Board of Trustees, Vs State of Kerala

Thiruvarattukavu Devi (a Perpetual Minor) Vs Union of India

R.Sunil Kumar Vs the Devaswom Commissioner