Jammu & Kashmir High Court
Inhabitants Of Village Plangarh ... vs Union Territory Of J&K And Others on 10 March, 2023
Sr. No. 44
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 27.02.2023.
Pronounced on:10.03.2023.
WP(C) No. 2355/2021
CM No. 6211/2022,
CM No. 8284/2021
Inhabitants of Village Plangarh Kote ....Petitioner(s)/Appellant(s)
Thanamandi Rajouri
Through :- Mr. Sheikh Najeeb, Advocate.
V/s
Union Territory of J&K and Others ....Respondent(s)
Through :- Mr. Vishal Sharma, DSGI.
Mrs. Monika Kohli, Sr. AAG
Mr. Ajaz Chowdhary, Advocate.
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
TASHI RABSTAN,J:
1. In this petition which has been filed in the representative capacity, the
petitioner inter alia has prayed for the following reliefs:
"Certiorari, Quashing Order No.Coll/Def/2021/1216-2020 dated
15.09.2021 issued by the respondent No.5 towards the implementation
of Order/Judgment dated 13.08.2021 passed by this Hon'ble Court in
WP(C) No. 1621/2021 rejected the case of the petitioner in a
mechanical manner on misconceived notion.
Mandamus:
i) Commanding the respondents to construct the road from Rajouri to
Thanamandi strictly as per original indent/DPR whereby width of the
road has been sanctioned as 24 Meters throughout.
ii) Commanding the respondents not to reduce the width of the road
from 24 Meters to 12 Meters within kms 12.910 to Kms 17.680 which
area caters to the villages of Plangarh, Kote, Badakhana and Khabala
as decided by the respondents by virtue of impugned order."
2. Brief facts which lead to the filing of the present writ petition are that
the Border Roads Organization undertook the task of widening/four laning of
Rajouri-Thanamandi Surankote Road having the length of approximately 57
Kms. Due to socio-economic development in the area the traffic has
considerably increased and the said road was in deplorable condition having big
potholes throughout Rajouri to Thanamandi causing grave hardships and
inconvenience to the civilians and Military and accordingly the proposal/indent
for improvement and widening/double laning of the road was placed initially
from Kms 3.900 to 25.200 on 24.07.2019 before the Revenue Authorities for the
acquisition of land. Some of the land owners in order to get their lands out of
purview of acquisition filed a writ petition bearing No. WP(C) No. 4193/2009
before this court and the said writ petition was disposed of by virtue of
judgment/order dated 15.11. 2019 with an observation that in case the process
initiated for acquisition of land under the Land Acquisition Act, 1999 is to
proceed further, the land owners shall be afforded opportunity of hearing in
support of the objections filed by them under Section 5A of the Act. The
respondents under the garb of the order dated 15.11.2019 solely to confer undue
benefit upon decided to change the alignment of the road by reducing the width
from 24 Mtrs to 12 Mtrs within km 12.910 to Km 17.680. The respondent No.4
by virtue of communication No. 8290/CE(P) SPK-15/2017-18/73/ E8 dated
10.01.2020 informed the decision of reducing the width of the road to the
respondent No.6 who in turn wrote a communication No. Coll/Def/2020/1283-85
dated 11.01.2020 to the Tehsildar Thanamandi with a request to prepare fresh
revenue papers of the subject villages with 12 Mtrs width from the proposed
centre line with 6 Mtrs on both side to proceed further in the matter. The local
inhabitants at large passed a resolution condemning the aforesaid act of reducing
the width of road and presented a writ petition before the court bearing WP(C)
No. 1621/2021 challenging the aforesaid action of the respondents. The said writ
petition came upon for consideration before the court on 13.08.2021 and on the
said date the same was disposed of with a direction to the respondents to
consider and decide the Legal Notice served by the petitioner/local inhabitants.
3. Thereafter towards the implementation of order dated 13.08.2021
passed by the court, the respondent no.5 had issued the impugned order No.
Coll/Def/2021/1216-20 dated 15.09.2021 by rejecting the case of the petitioner.
4. Learned counsel for the petitioner submitted that the petitioner is
aggrieved of the impugned order dated 15.09.2021 issued by the Respondent
no.5 as the same has been passed in mechanical and arbitrary manner on
misconceived notion.
5. It is further the submission of learned counsel for the petitioner that the
respondents on asking of some vested interests have decided to reduce the width
of Rajouri-Thanamandi Road from 24 Mtrs to 12 Mtrs from Kms 12.910 to
17.680 catering to the aforementioned villages in connivance with the
respondents solely to keep their land out of purview of acquisition.
6. It is further the submission of learned counsel for the petitioner that
due to socio-economic development in the area the traffic has considerably
increased and the said road was in deplorable condition having big potholes
throughout Rajouri to Thanamandi causing grave hardships and inconvenience to
the civilians and Military and accordingly the proposal/indent for improvement
and widening/laning of the road was placed initially from Kms. 3.900 to 25.200
on 24.07.2019 before the Revenue Authorities for the acquisition of land.
7. Heard learned counsel for the parties and perused the objections filed
by the official as well as private respondents.
8. The stand taken by the respondents 2, 3 and 4 that the Road Rajouri-
Thanamandi-Surankot having a length of 56.917 Km was originally constructed
by MES and subsequently handed over to BRO during 1971. The road was
included in the BRDB programme vide BRDB letter No. F(1)/BRDB Proj/64
dated 20 Aug 1971. The responsibility for improvement of this road from Km
3.900 to Km 22.200 has been entrusted to 58 RCC/31 BRTF (GREF) under
project Sampark.
9. The road in question is an important road axis which connects to both
Civil and Military traffic of District Rajouri. Besides, this road is important from
strategic point of view as it joins border district Rajouri and Poonch to Kashmir
valley through Mughal Road.
10. It is further averred that the existing Cl-9 Road was not found adequate
for increased traffic, as such, upgradation of this road to National Highway
Double Lane specification was felt essential to provide ease of accessibility of
local population. Accordingly, a proposal for upgradation of existing CL-9 road
to NHDL specifications from KM 3.900 to KM 56.915.
11. It is further averred that notification under Section 4(1) of the Land
Acquisition Act, 1990 for acquisition of land situated in Village Kote, Plangarh
& Khablan for the public purpose namely widening of Rajouri-Thanamandi road
was issued vide CLA (Def) Rajouri vide letter No. Coll/Def/2019-20/895-99
dated 16.10.2019, Coll/Def/2019-20/869-73 dated 16.10.2019 and
Coll/Def/2019-20/905-909 dated 16.10.2019.
12. It is averred that in compliance to order dated 13.08.2021 passed in
WP(C) No. 1621/2021, respondent had passed detailed speaking order on
07.09.2021. It is averred that after detailed analysis by the Officer Commanding,
58 RCC (GREF), it was found that, now in present acquisition proceedings,
Final award under Sections 9 and 9A of the Land Acquisition Act has already
been issued.
13. It is further contended in the objections that the petitioner's plea to
increase the width of the road from 12 Meters to 24 Meters within Kms 12.910
to Kms 17.960 is not possible. The acquisition in question has already been
completed and the site has also been handed over to the contractor for execution.
14. The other respondent-Collector Land Acquisition in his response
contended that the respondents in compliance to the aforementioned directions
passed by this court in an earlier round of litigation have conducted thorough
enquiry into the matter and thereafter the Collector after considering all the facts
and factual position in the case in hand passed a detailed speaking order dated
15.09.2021.
15. It is further averred in the objections filed by the Collector that as per
the spot position as well as report furnished by the indenting department and
taking into account the technical aspects involved, collector land acquisition
defence (respondent no.6 herein) vide No. Coll/Def/2020/1283-85 dated
11.01.2020 issued directions to the Tehsildar Thanamandi to prepare afresh
revenue papers of the subject villages with 12 Mtr width from the proposed
Centre Line with 6 Mtr on both sides from KM 12.910 to KM 17.680 (Existing
Chainages) and on receipt of afresh revenue papers, further proceedings as
mandated under the J&K Land Acquisition Act were initiated thereby issuance
of Notification u/s 4(1), 6 & 7 & 9 & 9(a) in which the land owners/petitioners
were afforded reasonable and sufficient opportunity to file objections, if any,
with regard to the land to be acquired, the quantum, amount of compensation and
measurement of land in question. However, despite acknowledging the service of
notices, the petitioners/land owners have not raised any objection at that time.
Accordingly, the land in question was acquired strictly as per the provisions
contained in the land Acquisition Act by issuance of Final Award.
16. In the objections filed by the private respondents, it is contended that
the petitioners are encroachers of the land owned by Irrigation Department and
accordingly the Irrigation Department on 23.04.2022 and 20.06.2022 issued
notices to the petitioners for removing the encroachment upon the irrigation
canal. Further, on 19.01.2023, again notices issued against the petitioner Mir Baz
and other persons to remove encroachment upon the land of irrigation
department and other land which comes under the alignment of the road. Thus,
the petitioners with malafide intentions and in order to stall the process of
acquisition, have filed present petition with ulterior motives.
17. In view of the above, we are of the opinion that the court cannot on its
own adjudicate as to whether the road alignment as proposed by the technical
team is feasible or not as the official respondents have examined the issue and
found the objections raised by the petitioners technically not feasible. Courts are
not equipped to decide upon the issues relating to the viability and feasibility of
the particular project, which in fact are the technical matters and the decision is
taken by people equipped with the necessary expertise. To decide as to on which
side of the road, the land should be acquired, the court cannot super impose its
opinion in the matter. Any interference in the case would delay the strategic
project. The allegations of malafides alleged by the petitioner qua the whole
process of acquisition and road widening also has been very well dealt with by
respondent no.5, Deputy Commissioner, Rajouri leaving no scope for this court
to intervene and interfere thereto.
18. Again, it is worth reiterating that the consistent view of the
constitutional courts in the matters of land acquisitions has been that the viability
or feasibility in the process of acquisition does not fall with the domain of courts
unless it exfacie is found to be contrary to law or is tainted with palpable
malafides. Reference in this regard to the judgment of the Apex court titled as
"State of UP and Ors Vs. Johri Mal reported in (2004) 4 SCC 714.
19. For the reasons mentioned above and keeping in view the law laid down
by Hon'ble the Supreme Court on the issue, we do not find any case is made out
to interfere in the present petition and the same is accordingly dismissed.
20. No order as to costs.
(MA Chowdhary) ) (Tashi Rabstan)
Judge Judge
Jammu:
10.03.2023
Raj Kumar
Whether the order is speaking? Yes
Whether the order is reportable? Yes
