Jammu & Kashmir High Court - Srinagar Bench
Villagers Of Thune Kangan vs Union Of India & Ors on 30 November, 2021
S. No. 55
Suppl. List. 1
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 2449/2021
Villagers of Thune Kangan ...Petitioner(s)
Through: Mr. J. H. Reshi, Adv.
Vs.
Union of India & Ors. ...Respondent(s)
Through: Mr Tahir Majid Shamsi, ASGI for 1.
Mr. M. A. Chashoo, AAG for 2 to 12
Mr. S. N. Ratanpuri, Adv. for Caveator/Respondent No. 13
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE MOHD AKRAM CHOWDHARY, JUDGE
ORDER
30.11.2021
1. Heard Mr. J. H. Reshi, learned counsel for the petitioner and Mr Tahir
Majid Shamsi, learned ASGI for respondent Nos. 2 to 12 and Mr. S. N.
Ratanpuri, learned counsel for respondent No. 13.
2. The petitioners who claim themselves to be the residents of village
Thune, Tehsil Kangal in District Ganderbal have jointly preferred this
petition with an application under Order 1 Rule 8 CPC to permit them
to file this petition in a representative capacity on behalf of all the
villagers.
3. The petitioners through the medium of this writ petition wants quashing
of the notification dated 14th November 2010 issued under Section 4 of
the J&K Land Acquisition Act; tentative award dated 4 th January 2011
passed by the Collector, Land Acquisition; NIT dated 11th October 2021
for the award of work of construction of the road from Thune to
Badipathri and for a direction in the nature of Mandamus restraining
the respondents from undertaking the construction work of the
aforesaid road as sanctioned and approved under the Pradhan
Mantri Gram Sadak Yojana and for holding an enquiry through the
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Crime Branch with regard to the irregularities committed in acquiring
the land by misusing the official position.
4. The argument of learned counsel for the petitioner is that the aforesaid
acquisition is a fraud committed by the officials and that there is no
public purpose in acquiring any land as no road as sought to be
constructed is actually needed. The said road is being constructed only
to benefit few persons living in Badipathri and the said construction
work would destroy the beauty of the area and, as such, is not
warranted.
5. The notification issued under Section 4(1) of the Act dated 14 th
November 2010 has been filed as Annexure-1 to the writ petition. It
clearly states that the land of which particulars are given below in the
chart is needed for public purpose namely for the construction of road
under the Pradhan Mantri Gram Sadak Yojana from Thune to
Badipathri in Tehsil Kangan District Ganderbal. In notifying the
aforesaid intent, the said notification also requires the land
owners/other persons interested to file their objections in terms of
Section 5 and 5(A) of the Act before the Collector, Land Acquisition
within a period of 15 days.
6. It is evident from the notification that the land is needed for a public
purpose for construction of a road under the Pradhan Mantri Gram
Sadak Yojana. The construction of a road in a village connecting the
two places is essentially a public purpose for the development of the
area. The decision to construct a road is a policy decision and is to be
taken by a body of experts under the government. It is for the authorities
to decide where the road has to be constructed and the said policy
decision is beyond the judicial review until and unless it is established
that it has been exercised with some mala fide intent in an arbitrary
manner.
7. There is no dispute to the fact that the two places which are sought to
be linked by the aforesaid road do not have any existing connectivity.
The question whether the said road would benefit around 25 to 30 souls
only who live there in connection with their activity of grazing having
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very few houses is immaterial and is again a matter of policy of the
Government that widely acclaims to connect every village in the
country with proper roads in the near future.
8. The notification issued under Section 4 of the Act is only a proposal to
acquire the land for the public purpose mentioned in the notification. It
is not a document witnessing the final acquisition. The petition is
completely silent if any declaration under Section 6 of the Act so as to
finally acquire the aforesaid land has been issued by the respondents
rather in one of the paragraphs it states that "no declaration or public
notice under Section 6 and 7 or Section 9/9A were dispensed with"
which may indicate that the petitioner's want to allege that the
declaration under Section 6 has not been issued as yet. In such a
scenario and in the absence of any challenge to the declaration, if any,
made under Section 6 of the Act, the challenge to the notification issued
under Section 4 of the Act is completely misconceived and is
premature.
9. The petitioners have nowhere pleaded that any award in connection
with the aforesaid notification issued under Section 4 of the Act has
been announced by the Collector. It only speaks about a tentative award
dated 4th January 2011. The so-called tentative award appears to be only
for the purposes of paying 80% of the compensation which is payable
before taking possession but is not a final award offering compensation
to the land owners or the persons interested.
10. It may be important to note that even where land is notified to be
acquired and the compensation is settled by private negotiation, the
statutory provisions have to be followed and an award has to be made
in terms of private negotiations offering compensation to the land
owners/persons interested until and unless the land owners/persons
interested comes forward to execute the sale deed in terms of the
settlement by private negotiation.
11. The Notice Inviting Tenders (NIT) has been issued so as to invite
tenders from the interested persons for the award of a contract for the
construction of road. No error or illegality has been pointed out in the
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said NIT. Challenge to it has been thrown only for the reason the
acquisition is said to be bad. Since there is no defect in the NIT, it is not
liable to be interfered with at this stage.
12. Learned counsel for the respondents have submitted that the filing of
this writ petition is an abuse of the process of law as the villagers have
earlier filed OWP No. 610/2012 Abdul Ahad Shera & Ors. vs. State of
JK & Ors. questioning the acquisition of the above land and the
construction of the road, but the same was dismissed vide judgment and
order dated 1st March 2017. The LPA preferred against the aforesaid
decision was also dismissed vide judgment and order dated 12th October
2021.
13. We have perused the aforesaid judgment and order passed in LPA and
find that the appellants therein had filed a writ petition alleging that the
officials in connivance with certain persons are unnecessarily acquiring
the aforesaid land in the village for the purposes of construction of a
road. They accordingly prayed that no road should be constructed,
judicial enquiry be held in the matter of its acquisition and payment of
compensation and in treating Kahcharaie as the proprietary land.
14. In the aforesaid matter also, the dispute was regarding construction of
8 Kms of road from Thune to Badipathri in Tehsil Kangan District
Ganderbal and it has come on record that the aforesaid acquisition was
initiated on the intent received from the Executive Engineer, Pradhan
Mantri Gram Sadak Yojana. Thus, 69 kanals and 13 marlas of land was
notified for acquisition which included 25 kanals 6 marlas of
proprietary land, 26 kanals and 1 marlas of Shamilat land and 18 kanals
and 16 marlas of Kahcharaie land. The construction of the said road has
the approval of the Ministry of Rural Development, Government of
India.
15. It was held that even Kahcharaie land can be acquired for public
purpose, but compensation in respect of such land is payable to the
concerned Panchayat only. The issue whether any Kahcharaie land has
been treated as a proprietary land for award of compensation is a matter
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involving factual aspects and it has rightly been left by the writ court to
be decided by the administrative authority.
16. In the said writ petition, no challenge was thrown to the notification
issued under Section 4 of the Act or to the NIT. The villagers could
have taken all the grounds of challenge to the acquisition proceedings
and matters connected thereto in the said very first writ petition. They
cannot be allowed to approach the court in batches and on one or two
grounds and to come again on other grounds after losing in the first
round. It is settled that successive writ petitions for virtually the same
cause of action by slightly challenging the prayers or by adding
additional prayers is not permissible in law and is apparently barred by
the principle enshrined under Order 2 Rule 2 CPC.
17. In view of the aforesaid facts and circumstances, we are of the opinion
that the villagers of village Thune in Tehsil Kangan of District
Ganderbal are misusing their right to approach this Court by filing
successive writ petitions concerning the same acquisition and they
cannot plead ignorance of the earlier litigation as both the petitions have
been filed through the same counsel. The petitioners if we may say so,
have indulged in legal engineering probably to mislead the court and
somehow to stall the construction of the road which is in larger public
interest. The petitioners are coming before the court to question the
notification dated 14th November 2010 issued under Section 4 (1) of the
Act after about 11 years in the garb of challenging the NIT dated 11 th
October 2021 issued for inviting tenders for construction of the road
that too without disclosing the full and complete facts.
18. Thus, in the overall facts and circumstances of the case, we do not deem
it necessary to exercise our discretionary jurisdiction in this matter and
dismisses the petition with costs.
(MOHD AKRAM CHOWDHARY) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
30.11.2021
Altaf
Whether the order is reportable? Yes
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