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2008 DIGILAW 613 (KER)

Kaduna Properties Private Ltd. v. Union Of India

2008-10-06

PIUS C.KURIAKOSE

body2008
Judgment : In this writ petition under Article 226 of the Constitution, the petitioner-M/s.Kaduna Properties (P)Ltd challenges Ext.P4 combined notification issued by the Government under section 4(1) and section 17(4) of the Land Acquisition Act invoking the emergency provisions of the Land Acquisition Act for acquisition of the properties mentioned therein including that of the petitioner directing that the enquiry under section 5A need not be conducted. The first respondent is Union of India in the Department of Shipping and Road Transport. Second respondent is the National Highway Authority of India. Third respondent is the State of Kerala. The District Collector, Ernakulam, Special Tahsildar (Land Acquisition Officer ICTT) Vallarpadam, The Project Director and the Cochin Port Trust were respectively impleaded as additional respondents 4 to 7. According to the petitioners their predecessor Narayanan and Babu owned two Acres of land in Mulavukadu village out of which 1.37 Acres of land were proposed to be acquired for the purpose of providing NH 47 connectivity to the International Container Transshipment Terminal at Vallarpadom on the basis of negotiation with the District Level Purchase Committee, the extent of 1.37 Ares of land were sold by Narayanan and Babu in favour of the National Highway Authority by Ext.P1 sale deed dated 16-8-2007 No. 6277/07 and Ext.P1(a) sale deed dated 22-8-2007 No.6425/07. The National Highway 47 connectivity to ICTT was finalised and flags were planted demarcating the Highways and Ext.P3 is the sketch showing the national highway connectivity in the said area. The petitioner purchased the balance extent of 63 cents of land in R.S.No. 12/4, 17/3 and 17/4 of Mulavukad village as per Ext.P2 sale deed dated 26-09-2007. It is alleged by the petitioners that Ext.P4 has now been issued for enabling a highly influential real estate developer to have road frontage to his property. It is contended that the land acquisition Act has no application since the acquisition is for highway and only the National Highway Act has application. Ext.P4 is challenged by the petitioner on various grounds including the following two main grounds: 1) The Land Acquisition Act 1894 has no application since the acquisition of land is for a National Highway and only National Highways Act 1956 applies. Ext.P4 is challenged by the petitioner on various grounds including the following two main grounds: 1) The Land Acquisition Act 1894 has no application since the acquisition of land is for a National Highway and only National Highways Act 1956 applies. 2) The acquisition is made changing the alignment under the influence of land mafia in order that there will be road access to the properties of persons who have acquired lands without road frontage in the locality. .2. Thefollowing are the reliefs sought for in the writ petition. .1) Issue a writ of certiorari quashing Ext.P4. 2) Issue other appropriate writs. .3. On behalf of the 7th respondent Cochin Port Trust, the Chief Engineer has filed a detailed counter affidavit. Inter alia, it is contended therein that Ext.P4 notification has been issued by the State of Kerala on the basis of the requisition made by the Port Trust to the District Collector as per Ext.R7(a) dated 17-10-2008 under Rule 4(1) of the Land Acquisition Kerala Rules 1990. In terms of Rule 5(2) of Land Acquisition Kerala Rules, the Collector recommended acquisition and the Government in pursuance of the District Collectors recommendations approved the request and accordingly Ext.P4 was issued. It is submitted that an extent of 1.3911 hectares of land is notified for acquisition from Mulavukadu village since the same is required to suit the alignment prior to obtaining EIA clearance and on the basis of that proposal, the land was acquired as per earlier notification under section 4(1) dated 9-9-2005 and 29-11-2005. Pursuant to those notifications proceedings were initiated for acquisition under the Land Acquisition Act in respect of some properties while certain properties were purchased by National Highway Authority by direct purchase on mutually agreed terms. Exts.P1 and P1(a) produced by the petitioners are instances of such mutual agreement purchases. The EIA ( Environmental Impact Assessment) clearance was obtained on 26-07-2006 and in Mulavukadu area it was found that the EIA plan of the road alignment had certain changes from the originally proposed alignment. Though attempt was made to avoid further acquisition in Mulavukadu area by proceeding with the originally proposed alignment, subject to EIA clearance, this was objected to by the people in the locality and thus left with no other alternative Ext.R7(a) requisition .had to be given. Though attempt was made to avoid further acquisition in Mulavukadu area by proceeding with the originally proposed alignment, subject to EIA clearance, this was objected to by the people in the locality and thus left with no other alternative Ext.R7(a) requisition .had to be given. It was to comply with the EIA approved plan of the alignment that it was decided to acquire more land in Mulavukadu area as per Ext.P4. It is submitted that acquisition of land covered by Ext.P4 is highly necessary for continuing the construction of the road through the alignment as per the EIA plan. Deviation of the alignment is not possible as even certain initial works done through the earlier proposed alignment was objected by the people in the locality. Ext.R7(b) has been produced as a copy of the plan showing the originally proposed alignment and the revised alignment as per EIA plan in Mulavukad area and it is submitted that the green coloured alignment in Ext.R7(b) is the originally proposed alignment which is now deviated as per EIA plan and shown by lines in red colour. As regards the contention that acquisition is permissible only under the National Highways Act and not under the Land Acquisition Act, the 7th respondent has produced Ext.R7(c) dated 24-12-2007 declaring the proposed national highway connectivity as NH 47 . It is pointed out that the requisition in respect of Ext.P4 had been given much prior to Ext.R7(c). The counter affidavit points out that the lands proposed to be acquired as per Ext.P4 are not fit for any commercial activity and are well within Coastal Regulation Zone and are fish ponds which are actually being used for agricultural purposes only. The change in the alignment became necessary for complying with the terms of the EIA clearance which was mandatory for accomplishing the indispensable purpose of providing road connectivity to the prestigious ICTT project. The counter affidavit denies the allegation that alignment of the highway has already been finalised and therefore the same cannot be deviated at this distance of time. It is pointed out that the alignment of the EIA can be said to be finalised only after Ext.R7(b) alignment plan of the EIA is implemented. The allegations of influence of land mafia are refuted in the counter affidavit. It is pointed out that the alignment of the EIA can be said to be finalised only after Ext.R7(b) alignment plan of the EIA is implemented. The allegations of influence of land mafia are refuted in the counter affidavit. The change in the alignment has been made for complying with Environment Impact Assessment for lessening the damages to the environment and the Government has got every power to issue Ext.P4 invoking the powers under the Land Acquisition Act notwithstanding the circumstance that the ICCT is constructed on BOT basis. Counter affidavit goes on to deny all the grounds raised in the writ petition. .4. Thepetitioner has filed a reply affidavit on 10/04/2008. The contention of the Cochin Port Trust that further acquisition has become necessary for complying with EIA clearance as per Ext.P4 is stoutly denied. It is pointed out that EIA clearance was obtained on 26/07/2006 and that it was subsequent to that clearance that the National Highway Authority of India purchased land from Babu and Narayanan and that if more lands were required for complying with the EIA clearance, the respondents would certainly have acquired these properties in the first instance itself. Reiterating the argument that it is the provisions of the National Highway Act which should be invoked for acquiring the properties, it is contended that what is important in land acquisition matters is the date of the notification for acquisition and that in this case Ext.P4 is dated 10/01/2008 which is much later than 24/07/2007, the date on which the connectivity road was declared by the Ministry of Transport as NH 47 C. It is then contended that EIA clearance dated 26/07/2006 has been obtained by the Port Trust with reference to the original alignment and then if any subsequent change in the alignment is to be made, the same will also require further EIA clearance which is yet to be obtained by the respondents. It is contended that since EIA clearance for the original alignment was obtained much prior to Ext.P4 notification and the work on the original alignment was smoothly going on, the only reason for the present shift in the alignment and the proposal to acquire additional properties as per Ext.P4 is to safeguard certain vested interests. It is contended that since EIA clearance for the original alignment was obtained much prior to Ext.P4 notification and the work on the original alignment was smoothly going on, the only reason for the present shift in the alignment and the proposal to acquire additional properties as per Ext.P4 is to safeguard certain vested interests. It is specifically contended that the person who has purchased property to an extent of 6 acres behind the petitioners property is known to be a very influential and politically connected person. It is stated that due to the influence of that person, the petitioner is unable to get copy of the sale deeds relating to the lands purchased by him. It is submitted that if the present proposal is accepted the entire property purchased by that person will come to have road frontage. The reply affidavit denies the contention that finalisation of the alignment can be done only after Ext.R7(b) is executed and contends that EIA clearance dated 26/07/2006 has been obtained only after finalisation of the originally proposed road alignment. It is reiterated that it is only that alignment which is having EIA clearance and the present alignment does not have the required clearance. Lastly it is contended that even if it is assumed that provisions of .the Land Acquisition Act 1894 can be invoked, then also the appropriate Government to issue notification in this case is the central government and not the State Government. 5. The 4th respondent District Collector has also filed a counter affidavit. It is stated therein that the contention that acquisition ought to be taken under the National Highways Act is unsustainable. It is pointed out that declarations under section 3 A (1) are issued upon satisfaction of the Central Government, that a public purpose exists for building, maintenance, management and operation of National Highways. In the instant case the Cochin Port Trust requested the Kerala Government for acquisition of additional land for the purpose of road connectivity from Kalamassery to Vallarpadom. The said request was a valid one and the purpose was pre-eminently of public nature. This was why Ext.P4 notification under the Land Acquisition Act was issued. In the instant case the Cochin Port Trust requested the Kerala Government for acquisition of additional land for the purpose of road connectivity from Kalamassery to Vallarpadom. The said request was a valid one and the purpose was pre-eminently of public nature. This was why Ext.P4 notification under the Land Acquisition Act was issued. Answering the claim of the petitioner that he has expended a lot on development work on his land, it is contended that the land purchased by the petitioner comes under the CRZ area and the petitioner has to obtain special sanction from CRZ authority before filling up the land. Since the land is situated at a depth of two meters, petitioner has to obtain permission from the RDO under the Land Utilisation Order since the land is wet land. It is contended that the claim of the petitioner of having developed the land is incorrect and it is alternatively contended that if at all the petitioner has carried out developments, the same were done in violation of the provisions of the KLU order and CRZ Rules. The counter affidavit of the District Collector denies the allegation that the proposed acquisition is made at the behest of owners of lands presently without road frontage to have frontage for their lands. The allegation that highly influential real estate developer has purchased/agreed to purchase large extent of land behind the petitioners property is also emphatically denied. These allegations are vague and it is highlighted that the acquisition is for a genuine and bona fide public purpose and that the same is vitiated by no mala fides whatsoever. The District Collectors counter affidavit denies the averments made in the writ petition regarding the maintainability of acquisition under the provisions of the Land Acquisition Act. It is contended that section 3 (j) of the National Highway Act only states that nothing in Land Acquisition Act 1894 shall apply to the acquisition under the Act since the acquisition under the present case is proceeding not under the National Highway Act. Thus section 3 (j) does not have any application. Lastly it is contended that construction of the four line road is in progress in the entire sketch of 17 Km from the Kalamassery to Vallarpadom and if the acquisition process is delayed, the entire project will be delayed. 6. Thus section 3 (j) does not have any application. Lastly it is contended that construction of the four line road is in progress in the entire sketch of 17 Km from the Kalamassery to Vallarpadom and if the acquisition process is delayed, the entire project will be delayed. 6. In view of the reply affidavit filed by the petitioner, a statement was filed by the 7th respondent Cochin Port Trust producing the Environmental clearance dated 26-07-2006 obtained for the road connectivity to ICTT project as Annexure A1. .7. Thepetitioner has filed a further reply affidavit on 14/07/2008. In this reply affidavit also the petitioner reiterates his contention that the present proceedings for acquisition under the Land Acquisition Act are unsustainable in view of the provisions in the National Highway Act. As Ext.P7, the petitioner has produced what he describes as true copy of the sketch of the portion of the alignment approved by NHAI on 01/04/2005 and produced before the Ministry of Environment for environmental clearance. It is submitted that it is Ext.P7 alignment which has been approved by the Ministry while issuing environmental clearance. Referring to Annexure A1, it is contended that three hectares from out of the additional extent of 4.44931 hectares presently proposed to be acquired is puzha and the change proposed substantially changes the profile of the project in terms of the impact on the environment and necessarily a fresh environmental clearance should be obtained. The reply affidavit contends that Ext.R7(b) , the revised alignment marked by red lines has not been approved by the Ministry of Environment and that the same is not the final plan. It is contended that the alternate alignment proposed were not approved by the Ministry because of the need for reclaiming extra area. By issuing Ext.P4 the proposal is to acquire land for construction of highway without obtaining clearance from the authorities such as Kerala Coastal Zone Management Authority whose clearance is necessary since additional reclamation of back water area will be required for .constructing the highway through the lands covered by Ext.P4. Ext.P8 copy of the letter from the Member Secretary of the Kerala Coastal Zone management Authority to Ministry of Environment and Forests, Govt. of India and Ext.P8(a) minutes of the 18th meeting of the Kerala Coastal Zone Management Authority are relied on in this context. Ext.P8 copy of the letter from the Member Secretary of the Kerala Coastal Zone management Authority to Ministry of Environment and Forests, Govt. of India and Ext.P8(a) minutes of the 18th meeting of the Kerala Coastal Zone Management Authority are relied on in this context. Ext.P9 produced is a copy of the notification under section 17(4) issued pursuant to Ext.P4 and it is contended on the basis of Ext.P9 that the endeavour of the respondents to bypass the provisions of the National Highways Act on the reason that the requisition is earlier to the date of declaration of the road as National Highway cannot succeed. It is contended that vast portion of land locked area lying behind the petitioners property was purchased by a real estate company which is nothing but a facade for a very influential person by name Fariz Aboobacker. The company by name M/s Uthiramerur Realtors (P)Ltd which has purchased an extent of around 6 acres and the road access to those 6 acres was only through the narrow long stretch pathway. M/s Uthiramerur Realtors (P)Ltd is a subsidiary company of M/s Parrot Grove (P)Ltd. The paid up capital of M/s Uthirameroor Realtors (P) Ltd is only Rs. 500/-. On the contrary, M/s Parrot Grove (P)Ltd has 10,002 shares of which Fariz Aboobacker owns 10,000 shares while Sri.T.K.A.Nair holds 1 share and Sri.Renji Panicker holds the other share. It is accordingly contended that M/s Parrot Grove (P) Ltd wholly belongs to Sri.Fariz Aboobacker and M/s Uthirameroor Realtors belongs to M/s Parrot Grove (P)Ltd.. Ext.P10 , copy of Form 23 A C filed by M/s.Uthiramerur Realtors Pvt. Ltd and Ext.P10(a), the Memorandum and Articles of Association of M/s. Parrot Grove (P)Ltd are relied on in this context. .8. On behalf of the first respondent Union of India the second respondent National Highway Authority of India and 6th respondent Project Director, a counter affidavit was filed by the Project Director on 14/07/2008. The Assistant Solicitor General of India Sri.P.Parameswaran Nair submitted that the Project Director has been authorised to file the affidavit on behalf of the Union of India as well as the concerned Ministries and that the Government is adopting all the contentions raised through that counter affidavit and the submissions to be addressed in the case by Sri.Thomas Antony, standing counsel for the National Highway Authority of India. It is contended in the counter affidavit that providing 4 line road connectivity for ICTT at Vallarpadom to National Highway 47 by March 2009 is one of the conditions precedent attached to the agreement between the Dubai Port International (Licensee) and the Cochin Port Trust for the development of the prestigious ICTT at Vallarpadom. It is stated that NHAI has been entrusted with the construction of the new 4 lane highway having a length of 17.20 km in which the Cochin Port Trust is involved in various pre-construction activities such as Land Acquisition, Shifting of Utilities, Reclamation of Coastal Land etc. Once the land is available, the Contractor engaged by NHAI will construct the 4 lane road and the contract has already been signed with the contractor and acquisition of land has thus become a critical activity for construction of the road. Produced as Ext.R6(a) along with this counter affidavit is a map showing the approved alignment of the new 4 lane NH connectivity to ICTT from Kalamassery. It is stated that environmental clearance has been issued by the Ministry of Environment and Forest of the Central Government by Annexure A order in respect of this alignment. It is reiterated that the project is a time bound one and that is why the emergency clauses of the Land Acquisition Act have been invoked. The road formation which passes through Ernakulam Kayal, kilometres 8.40 to 15.10 will be developed by the Cochin Port Trust by doing reclamation work and constructing the side walls. It is only after the completion of the work of Cochin Port Trust that the reach will be handed over to NHAI for construction of the road. The counter affidavit goes on to deny the various grounds raised in the writ petition and through the reply affidavit. Meeting the ground that acquisition proceedings under the Land Acquisition Act 1894 are not maintainable, it is contended that there is no statutory requirement that land required for construction of NH shall be acquired only under the National Highway Act 1956. Referring to section 13 of the National Highway Authority of India Act 1988 it is submitted that the said provision gives option to the NHAI and the provision is only an enabling one and that other modes of acquisition are not foreclosed. Referring to section 13 of the National Highway Authority of India Act 1988 it is submitted that the said provision gives option to the NHAI and the provision is only an enabling one and that other modes of acquisition are not foreclosed. It is also pointed out that the requisitioning authority is the CPT and that at the time of requisitioning, the road in question was yet to be notified as national highway. It is contended that no legal right of the .petitioner is infringed by the proposed acquisition since the land acquisition Act assures him adequate compensation for the acquired property. Lastly it is contended that the beneficiaries of the project are the general public and any delay would cause huge loss to the entire country and will have serious contractual and financial consequences for both the Cochin Port as well the NHAI. 9. When it was noticed that the controversy as to which is the final approved alignment on the basis of which NH47 C is being constructed, is continuing, I directed Sri.Thomas Antony to clarify things further if necessary by filing further documents. Accordingly, a further counter affidavit is filed on 23/07/2008 by the Project Director. It is reiterated therein that the alignment of the road produced as Ext.R6 (a) is prepared, checked and approved by the Centre for Earth Science Studies and forwarded to the Ministry of Environment and Forest through the Kerala Coastal Zone Management Authority and that the said Authority forwarded Ext.R6(a) only after their studies. It is submitted that the two alignments mentioned in Exts.P8 and P8(a) are those shown in Ext.P7. The alignment mentioned as new alignment in Ext.P7 was the one which was shifted towards east requiring additional reclamation of back water area towards eastern side. Therefore the alignment marked as the old alignment in Ext.P7 was approved and the same is Ext.R6(a). The affidavit denies the contention that Ext.R6(a) is not the alignment which was approved by the Ministry of Environment and that it is Ext.P11 alignment which was approved as the final alignment. Ext.P11 it is pointed out, is only a key map, one among the several prepared by the Consultant of NHAI and the same is not the final or the alignment approved by the Ministry of Environment and Forest. Ext.P11 it is pointed out, is only a key map, one among the several prepared by the Consultant of NHAI and the same is not the final or the alignment approved by the Ministry of Environment and Forest. It is reiterated that Ext.R6(a) is the alignment which was approved by the Ministry by their order No. 5-32/2005-IA-III dated 26/07/2006 . Ext.R6(b) true photocopy of the map stating that Ext.R6 (a) is the approved alignment of the new 4 lane NH connectivity to ICTT from Kalamassery issued by the Addl. Director of Ministry of Environment and Forest dated 18-07-2008 is produced. It is reiterated that Ext.P11 is not the alignment and is only a key plan which does not reflect the details of the property through which the road is to be constructed. The counter affidavit also produces Ext.R6(c) stating that the same will give a proper understanding of the disputed area. Ext.R6 (C) is the group sketch of survey Nos. 11,12,13, 17, 18 ,22 and 23 of Mulavukad village prepared by Superintendent, Surveys and Land Records, Collectorate, Ernakulam. It is submitted that in Ext.R6(c) the red line is the alignment of the road approved by the Ministry of Environment and Forest and the blue lines shows the alternate one which was suggested as the new alignment in Ext.P7. The properties within the green lines are those which were purchased under the DLPC scheme. The portions shown in green stripes are the extents that will be out side the carriage way of the road but the same is needed for the purpose of providing amenities for the highway. The brown shaded portions are the properties that are required for the construction of the road following Ext.R6(b) approved alignment and now notified under Ext.P4. 10. It was very extensive arguments which were addressed before me by Sri.Bechu Kurian Thomas, learned counsel for the petitioner Sri.D.Anil Kumar, senior Government Pleader for State Government, Sri.A.M.Shaffique, learned Senior counsel for the Cochin Port Trust and Sri.Thomas Antony, learned standing counsel for the National Highway Authority of India who according to the Assistant Solicitor General of India Sri.P.Parameswaran Nair has been authorised by the Government of India in this case to appear for the Government as well as the Ministry .11. The submissions of the learned counsel were founded on the pleadings of their respective parties as well as on the documents placed on record by them. Sri.Bechu Kurian Thomas would refer to Section 3 (J) of the National Highway Act, sections 3(a), 3(b) and 4 (a) of the National Highway Act and also to Section 13 of the National Highway Authority of India Act, Section 3(g) of the National Highway Authority of India Act. He drew my attention of Exts.P1, P2, P3, P4, P5, P7, P8, P10(a), R7(b), Annexure A in the statement filed by counsel for the Cochin Port Trust, Ext.R6(a) plan, Ext.R6(c). Ext.R7(a) requisition, Ext.R7(b),Ext.R7(c). He would fortify his submissions by citing a large number of judicial precedents including the judgment of the Supreme Court in Competent .Authority v. Barangore Jute Factory and others (2005(13)SCC 477) . The above decision was cited by him as authority for the proposition that acquisition should have been resorted to under the provisions of the National Highways Act rather than under the Land Acquisition Act. Sri.Bechu Kurian relied also on the judgment of the High Court in Mohan Singh and others v. International Airport Authority of India and others (1997 (9) SCC 132) to argue that determination of the legislative intent underlying use of words shall or may is to be made having regard to the context, the subject matter and object of the provisions in which those words have been used. Almost for the same proposition, Sri.Bechu Kurian relied on another judgment of the Supreme Court in Dhampur Sugar Mills Ltd. v. State of U.P. and others (2007(8) SCC 338). He argued that the provisions in the National Highways Act pertaining to acquisition of land for the purpose of National highways amounted to implied repeal of the provisions of the Land Acquisition act and he relied on Ratan Lal Adukia v. Union of India (1989 (3) SCC 537). Sri.Bechu Kurian would however fairly submit that a Division Bench of the Karnataka High Court has struck down Section 3(j) of the National Highways Act as unconstitutional and he placed before me the judgment which is reported in Lalita v. Union of India. Sri.Bechu Kurian relied on the judgment of the Supreme Court in Tirath Singh v. Bachittar Singh and others (AIR 1955 SCC 830) in support of his arguments pertaining to interpretation of provisions of the National Highways Act. Sri.Bechu Kurian relied on the judgment of the Supreme Court in Tirath Singh v. Bachittar Singh and others (AIR 1955 SCC 830) in support of his arguments pertaining to interpretation of provisions of the National Highways Act. Supporting his argument that the word may can be read in a given situation as shall, Sri.Bechu Kurian referred to the judgment of the Supreme Court in Girnar Traders v. State of Maharashtra and others (2007(7) SCC 555). 12. Sri.A.M.Shaffique, senior counsel for the Cochin Port Trust referred to Section 3(a) of the National Highways Act. Rule 4 of Land Acquisition (Kerala) Rules, Section 13 of the National Highway Authority of India Act. Apart from referring to the counter affidavit, he referred to certain passages in my common judgment in W.P.(C) No.37570/07, 167, 4728, 4834, 5380 and 11556 of 2008. He concluded by submitting that ICTT is a project which involves completion of the High way as well as the rail connectivity and that the Cochin Port Trust is obliged to complete the work by 31/03/2009 and if the national highway connectivity is delayed, the commissioning of the project will get further delayed and may not become a reality at all. 13. Sri.D.Anil Kumar, learned senior Government Pleader would support all the submissions of Sri.T.Shaffique and would point out that this is a case where the declaration issued under section 6 (3) of the Land Acquisition Act has not been challenged at all. 14. Sri.Thomas Antony, standing counsel for the National Highway Authority of India submitting also on behalf of Union of India and its departments referred to Ext.R6 (a), Ext.R6(b), R6(c), Ext.P8 and also to Section 5 of the National Highway Act. The learned standing counsel supported the submissions of Sri.A.M.Shaffique and Sri.D.Anil Kumar in full on the basis of the two counter affidavits filed by the Project Director. 15. I had occasion to deal with a number of writ petitions filed by owners of land which were under acquisition for the purpose of establishing road connectivity and rail connectivity to the project site of the International Container Transshipment Terminal (ICTT) presently taken up by the Cochin Port Trust at Vallarpadam. I had by common judgment in WP(C) No. 37570 of 2007 series disposed of those cases giving certain reliefs to the petitioners therein. I had by common judgment in WP(C) No. 37570 of 2007 series disposed of those cases giving certain reliefs to the petitioners therein. In those cases it was contended by the Cochin Port Trust as well as by the Union and the State Governments that ICTT is a project of great national importance and that all authorities including the Government of India hold the ICTT project at Vallarpadam in a very high esteem and that the delay in the matter of implementation of the project is to be avoided at any cost. It was contended that any delay which may be caused in the matter of execution of the project which is to be completed in a time bound manner as per the agreement which is already entered into between the builder Dubai Ports and Cochin Port Trust will be highly detrimental both financially and otherwise. It was contended that delay in the matter of completion of the project will reflect badly on the country as a whole. It was noticed in that judgment that the ICTT is intended for undertaking transshipment of traffic which is presently transshipped via Columbo in Srilanka, the existing container terminal of Columbo Port being already congested. It was noticed that the Srilankan Government and Columbo Port have already taken up a project for construction of a new container terminal in Columbo by name Columbo South Harbour investing over Rs.3000 crores with financial assistance from the ADB and that that terminal is scheduled for commissioning within a period of 30 months. It was also noticed that the work of that project is proceeding at a very fast pace and that it is necessary in view of that project also that the ICTT project is completed and commissioned as per schedule. It was also noticed in that case that if the Cochin Port Trust is unable to provide road connectivity and rail connectivity before commissioning of the terminal by the BOT operator M/s. Dubai Port, the CPT will become obliged to pay compensation for the operational and financial consequences of such default to the BOT operator and that the compensation amount payable would be quite substantial. It was accepted in that case that it is not conducive to the interest and prestige of our great nation to create a situation whereby we become liable to pay compensation to BOT operator for having caused delay. It was accepted in that case that it is not conducive to the interest and prestige of our great nation to create a situation whereby we become liable to pay compensation to BOT operator for having caused delay. In this case also it is not in dispute before me that the purpose for which lands are being acquired is pre- eminently a genuine public purpose. In this case also I am inclined to find that having regard to the international importance of the project and the prestige and esteem in which the project is held by the Government of India and the authorities under the same the promises which the project holds out to the State of Kerala in particular and to the entire country in general, delay in the commissioning of the project is to be avoided at any cost. 16. Ext.P4 under challenge in this case is notification dated 10-1-08 under section 4(1) invoking the urgency clause under section 17(4) whereby the petitioners property is proposed to be acquired. According to the their predecessors one Narayanan and Babu had owned two acres of land in Mulavukad Village, out of which, 1.37 acres was proposed to be acquired for the same purpose and as per Exts.P1 and P1(a) sale deeds by negotiation 1.37 acres was conveyed to the National Highway Authority of India. The petitioner claims that NH 47 connectivity to ICTT was finalised and plants were planted demarcating the Highways and Ext.P3 is the sketch showing the N.H. connectivity in the said area. According to the petitioner they purchased the balance extent of 63 cents of land as per Ext.P2 sale deed. Petitioner alleges that Ext.P4 is issued for enabling a highly influential real estate developer to have road frontage to his property which is presently without any proper road frontage. Petitioner also contends that since the acquisition is for a National Highway L.A. Act cannot have any application. 17. All the contentions of the petitioner are stoutly denied by the respondents who contend that it became necessary to issue fresh notification Ext.P4 so that the road can be constructed through the alignment which conforms with the EIA plan. The alignment shown with red line in Ext.R7 (b) is the presently approved alignment. 17. All the contentions of the petitioner are stoutly denied by the respondents who contend that it became necessary to issue fresh notification Ext.P4 so that the road can be constructed through the alignment which conforms with the EIA plan. The alignment shown with red line in Ext.R7 (b) is the presently approved alignment. The Union of India and National Highway Authority of India have produced Ext.R6(a) as the alignment approved by the Coastal Zone Management Authority which is the same as the alignment shown in Ext.R7(b) within red line. 18. The argument of Mr.Bechu Kurian Thomas was that by virtue of the provisions of Sections 3A(2) and 3J(2) of the National Highways Act, 1956, there is an implied repeal of the procedure prescribed under the Land Acquisition Act for acquisition of land in respect of national highways. The argument specifically was that the word may used in the clause (1) of Section 3(a) should be read as shall and that the Government is therefore bound to issue a notification under Section 3A (2) if the acquisition is for the purposes of a National Highway. Strong reliance was placed on by the learned counsel for the petitioner on the judgment of the Supreme Court in Ratanlal Adukiya v. Union of India [ (1989) 3 SCC 537] and the judgment in Dhampur Sugar Mills Ltd. v. State of U.P. [ (2007) 8 SCC 338] and also the judgment in Mohan Singh v. International Airport Authority of India [ (1997) 9 SCC 132]. The changes which the alignment had undergone at the time of preparing the EIA plan and Ext.P8 clearance issued by the Kerala Coastal Zone Management Authority were highlighted by Mr.Bechu as indicative of mala fides which taint the present proposal to acquire their property. It was highlighted that M/s.Uthiramerur Realtors (P) Ltd. who have come to have ownership over six acres of land lying adjacent to the petitioners property under acquisition is a subsidiary of M/s.Parrot Grove (P) Ltd., a company virtually owned by Mr.Pharis Abubacker and that Mr.Abubacker will be the immediate beneficiary of the acquisition of the petitioners property as per the revised alignment since his property which was without proper road frontage will come to enjoy road frontage by virtue of the acquisition. 19. 19. Having scanned the pleadings, the materials placed on record and having anxiously considered the rival submissions in the light of the judicial precedents cited at the bar and the judicial precedents which are relevant, I am inclined to conclude that the petitioner is not entitled for reliefs. All said and done the petitioners themselves are real estate developers who purchased the subject properties from its previous owners Babu and Narayanan hoping to get benefits out of the land value escalation which they expected will result from the emergence of the ICTT and the Highway leading to the project site. They have naturally been disappointed to notice that the property which they had purchased has now been contrary to their expectations earlier, notified for acquisition for the purpose for which their predecessors had conveyed substantial portions of what originally was a single holding to the National Highway Authority of India for the same purpose. 20. The first question is whether there is any ground for accepting the petitioners allegation that the present proposal to acquire their property which the result of a deviation made in the alignment is actuated by mala fides and at the instance of one Mr.Fariz Aboobacker who is said to have much clout with those who hold the reigns of power. The specific allegation is that the adjacent property having an extent of 6 acres was purchased by M/s. Uthiramerur Realtors (P) Ltd. and that the above company is subsidiary of M/s. Parrot Grove (P) Ltd., a company virtually owned by Mr.Fariz Aboobacker and family and that it is to provide road frontage for that property that the acquisition is being made. Despite all the allegations levelled against Sri.Fariz Aboobacker the petitioner has not chosen to implead him as a party so as to give him an opportunity to deny the allegations. Legal position is trite that allegations of mala fides levelled against an individual are liable to be ignored in the absence of those individuals before the court and the judgment of the Supreme Court in M/s.Girias Investment Pvt. Ltd. v. State of Karnataka, JT 2008 (4) SC 242 is perhaps latest on the point. Of course it is noticed that after the arguments in this case commenced, an application for impleadment was filed by the petitioner. Here again impleadment is sought not of Sri. Of course it is noticed that after the arguments in this case commenced, an application for impleadment was filed by the petitioner. Here again impleadment is sought not of Sri. Fariz Aboobacker but of Uthiramerur Realtors (P) Ltd. It will be immediately noticed that no convincing materials have been placed before this court to show that Sri.Fariz Aboobacker has acquired interest over the aforementioned extent of 6 acres. Even assuming the petitioners case that the aforementioned extent of 6 acres belong to a company, owned virtually by Sri.Fariz Aboobacker is correct, then also it will be extremely difficult to accept the petitioners allegation that the proposal to acquire their property has been made at the behest of Sri.Fariz Aboobacker. The acquisition which is proceeding admittedly for the public purpose of constructing Highway to the project site of ICTT is based on the approval given by the Ministry of Environment and Forest wherein it is stated that all conditions stipulated by the Kerala State Coastal Zone Management Authority vide their letter No.052/ENB/05/CZMA dated 26-6-2006 (Ext.P8) should be strictly implemented. In Ext.P8 letter the Kerala State Coastal Zone Management Authority recommended for approval of the Ministry of Environment and Forest for necessary CRZ clearance along with the map of the alignment with details of the area within CRZ received from NHAI. Ext.R6(a) is the map which clearly shows that in Mulavukad area the property covered by Ext.P4 is required for the alignment of NH connectivity. In respect of CRZ area, road connectivity is permissible only in accordance with the plan approved by KCZMA. Of course there was serious controversy at the Bar as to which is the alignment that has been approved by the Ministry and the Coastal Zone Management Authority. In fact the subsequent affidavit dated 23-7-08 was filed by the Project Director on behalf of the Union of India, the NHAI and also on behalf of himself. That affidavit in my opinion settles all the controversies and states that R6 (b) is the approved alignment of the four lane NH connectivity to ICTT from Kalamassery. R6(b) shows an endorsement dated 17-7-08 to the effect that this drawing pertains to environment clearance issued vide letter No. 5-32/2005-1A-III dated 26-7-06 of Ministry of Environment and Forest. I therefore have no difficulty to accept the case of the respondent that R6(b) is the approved alignment. R6(b) shows an endorsement dated 17-7-08 to the effect that this drawing pertains to environment clearance issued vide letter No. 5-32/2005-1A-III dated 26-7-06 of Ministry of Environment and Forest. I therefore have no difficulty to accept the case of the respondent that R6(b) is the approved alignment. R6(c) produced along with the very same affidavit is a true copy of group sketch of survey Nos. 11, 12, 13, 17, 18, 22 and 23 of Mulavukad Village prepared by the Superintendent, Survey and Land Records, Ernakulam. In R6(c) the alignment of the road approved by the Ministry in conformity with the environmental clearance is shown within red lines and what was originally proposed is shown within blue lines. The properties which are proposed to be acquired as per Ext.P4 are shaded brown. The brown shaded portion will come within the carriage way of the proposed highway. R6(c) will reveal that the portion shown in green stripes though purchased under DLPC scheme will be outside the carriage way of the road. But the claim is that such portions, though outside the carriage way of the road will be utilised for the purpose of providing amenities for the Highway. The said claim is quite convincing. Therefore I turn down the contention that the acquisition proposed as per Ext.P4 is vitiated by mala fides and is at the behest of any land mafia amounting to a colourable exercise of power. The said acquisition became necessary in view of the conditions set out for the EIA clearance without which Highway construction is not possible since the area come within the CRZ. 21. Now I shall deal with the argument that the National Highways Act alone applies for acquisition of land for National Highway and that the notification under section 4(1) of the Land Acquisition Act issued on 10-1-2008 which is about three weeks after Ext.R7(c) declaring the road in question as a National Highway is incompetent. Annexure-A is the environmental clearance dated 27-6-2006 issued by the Government of India Ministry of Environment and Forest. Condition 19 under paragraph-A captioned specific conditions is that the acquisition of the area for the project should be undertaken as per the Kerala Government Land Acquisition Act and compensation should be paid under the said Act. Annexure-A is the environmental clearance dated 27-6-2006 issued by the Government of India Ministry of Environment and Forest. Condition 19 under paragraph-A captioned specific conditions is that the acquisition of the area for the project should be undertaken as per the Kerala Government Land Acquisition Act and compensation should be paid under the said Act. Condition 17 is to the effect that the project affected people should be compensated and rehabilitated as per the R and R plan approved by the State Government. Thus on the very terms of Annexure-A environmental clearance the project of providing road connectivity to the ICTT terminal and National Highway 47 at Kalamassery has to be implemented by resorting to the provisions of the Land Acquisition Act and not the National Highways Act. 22. Under section 3A of the National Highways Act, the Central Government may by notification in the Official Gazette declare the Governments intention to acquire lands for a public purpose, viz., the purpose of maintaining, managing and operating a National Highway or part thereof. If such a notification is issued, the procedure under section 3B to 3H has to be followed and there is stipulation in section 3J that nothing in the LA Act shall apply to an acquisition under the said Act. Therefore it is clear that unless the Central Government exercises its power to issue notification under section 3A, the National Highways Act will not have any application. 23. Section 13 of the National Highway Authority of India Act, 1988 is also relevant and the same reads as under. "13. Compulsory acquisition of land for the Authority:-Any land required by the Authority for discharging its functions under this Act shall be deemed to be land needed for a public purpose and such land may be acquired for the Authority under the provisions of the National Highways Act, 1956." On a plain reading, the above provision gives a discretion to the Authority to acquire the land under the National Highways Act 1956 and does not curtail the provisions of the LA Act 1894 for acquiring land for a National Highway. I am unable to accept the argument of Mr.Bechu Kurian Thomas on the authority of Ratanlal Adukiya v. Union of India (1989) 3 SCC 537, Dhampur Sugar Mills Ltd. v. Stagte of UP and others, (2007) 8 SCC 338 and Mohan Singh v. International Airport Authority of India, (1997) 9 SCC 132 that the word "may" used in section 13 of the National Highway Authority of India Act has to be read as "shall". It is true that the word "may" need not always indicate a directory provision. A purposive and contextual interpretation is to be adopted. When such an interpretation is adopted in the peculiar facts of this case, the interpretation can only be that section 13 does not mandate that compulsory acquisition of land for the National Highway Authority should be made only under the provisions of the National Highways Act 1956. As already indicated, but for Annexure-A, the project would not have been possible. Annexure-A mandates that the acquisition shall be in accordance with the provisions of the LA Act and that is the obligation of the State Government to provide rehabilitation and resettlement benefits to the evictees by evolving necessary policies in that regard. 24. On a comparison of the relative provisions in the National Highways Act 1956 and in the Land Acquisition Act 1894 pertaining to determination of compensation and adjudication of disputes regarding the adequacy of the compensation determined by the original authority, I find that from the point of view of the owner of the property which is acquired, the provisions of the LA Act 1894 are more attractive. Thus the invocation of the L.A. Act provisions, rather than the National Highway Act provisions does not cause any prejudice to the petitioner. In fact such invocation is to his advantage. Mr.Bechu Kurian Thomas himself placed before me a copy of the judgment of the Karnataka High Court in Lalita v. Union of India, whereby a learned Judge of that High Court struck down section 3J of the National Highways Act noticing that the Land Acquisition Act confers better benefits to the land owners in the form of additional amount under section 23(1-A), solatium under section 23(2) and interest under section 28. 25. 25. Before I conclude I shall again advert to the petitioners grievance voiced by his counsel Mr.Bechu Kurian Thomas even in his submissions in reply that M/s. Uthiramerur Realtors (P) Ltd. are going to gain considerably by virtue of the acquisition of the petitioners property. The respondents have definite contention that construction of any nature whatsoever is not possible on the 6 acres of property stated to have been acquired by M/s. Uthiramerur Realtors since those properties come within the CRZ area and because the lands are wet lands necessitating permits under Kerala Land Utilisation Order. Leaving that contention alone it can be assumed that if that property which is presently without any proper road frontage is going to have direct frontage of the proposed National Highway being constructed by utilising the lands covered by Ext.P4 notification, the same will result in escalation of the market value of that property. But according to me, this is happening only fortuitously, as is likely to happen when lands are acquired for the purpose of construction of new roads or for widening of existing roads. The present owners of the 6 acres of land frequently referred to by the petitioner as land mafia, whoever they are, perhaps are being benefited on account of the emergence of a new National Highway by the side of their property which allegedly did not enjoy sufficient road frontage earlier. Even here, I do not think that those owners will be entitled as of right for direct access to the proposed National Highway. It will always be possible for the Union Government or the National Highway Authority to regulate entry to the proposed Highway and its shoulder ways since they lead to a high security area. 26. The result of the above discussion is that the writ petition fails and will stand dismissed but in the circumstances the parties will suffer their costs.