Jammu & Kashmir High Court
Krishan Gopal Puri vs State Of Jammu & Kashmir Through on 28 February, 2024
Sr. No. 13
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
OWP No. 1609/2018
IA No. 1/2018
CM No. 925/2023
CM No. 879/2024
Krishan Gopal Puri, aged 78 years
S/O Sh. Nathu Ram puri
R/O Taraf Tejwal Kathua
C/O Sachin Sharma (Advocate)
45, Garden Avenue, Talab Tillo Road, .....Petitioner(s)
Jammu.
Through :- Mr. L K Sharma, Sr. Advocate with
Mr. Mohit Kumar, Advocate
v/s
1. State of Jammu & Kashmir through
Commissioner/Secretary Urban and Local
Bodies, Civil Secretariat, Srinagar.
2. Director, Urban Local Bodies, Jammu.
3. Executive Engineer, Irrigation Division,
Kathua.
4. Executive Engineer, Town Drainage Division,
Narwal, Jammu.
5. PW(R&B) Department, Division, Kathua .....Respondent(s)
Through :- Mr. S S Nanda, Sr. AAG for R-1,2&4
Mr. Amit Gupta, AAG for R-3
Mr. Ravinder Gupta, AAG for R-5
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
28.02.2024
1. Petitioner through the medium of this petition has sought direction
commanding respondent Nos. 1 to 4 to cover the Nallah and Irrigation
Channel constructed by them through the land of petitioner and his brother
namely Madan Gopal Puri, who was initially arrayed as respondent No.5
but was deleted from the array of respondents vide this Court order dated
28.05.2019 and also make payment of compensation after properly
acquiring the land of the petitioner and his brother used for the construction
of the Nallah.
2. It has been asserted that the petitioner and his brother Madan Gopal Puri
are owners of land measuring 7 Kanal 4 Marlas comprising Khasra Nos.
733 (17M), 787 (4K-16M), 734 (2K-6M) situated at Taraf Tejwal Kathua
Town, District Kathua, which had devolved upon them from their father
Late Nathu Ram Puri. It has been alleged that respondent No.3 Executive
Engineer, Irrigation Division Kathua acquired 1K-1M of land i.e about 10
Marlas from Khasra No. 733 and one Marla from Khasra No. 787 and
10 Marlas from Khasra No. 734, construction of Irrigation Channel about
300 feet long and 5 feet wide covering about 6 marlas of land for Irrigation
purposes out of the entire three khasra numbers owned and possessed by
the petitioner and his brother without paying any compensation to them. It
was also asserted that the Irrigation Department had laid slab over about
100 feet Irrigation Channel in length and in spite of the direction of the
Chief Engineer Irrigation on 31.03.2015 to the Executive Engineer for
taking up laying of slab over the left over portion, in the next financial
year, the Irrigation Department has not covered the left over Irrigation
Channel.
3. It is being pleaded that the Urban Development Department constructed a
10 feet wide and 300 feet long nallah (drain) along the Irrigation Channel
through the land of the petitioner covering the land measuring about 6
marlas from Khasra No.787 and 10 marlas from Khasra No. 734 without
any acquisition and the construction of the Irrigation Channel by the
Irrigation Department and drain by the Sewerage Department had divided
the land of the petitioner in two parts and at that time the petitioner had
been assured by the Sewerage Department that they will cover the drain
with slab so that the petitioner could enjoy the land which is owned by the
petitioner, on each side of the drain. It was alleged that the Irrigation
Department as well as the Sewerage Department though being under
obligation to cover the water channel and nallah and repair the side walls
which got badly damaged with the passage of time as inferior material had
been used, did not respond to the same and the compensation has also not
been paid to the petitioner and his brother for use of their land; that the
construction of nallah by the Sewerage Department has become a health
hazard contributing to the water and air pollution, as such, it was finally
prayed that the respondents 1 to 4 be commanded by a writ of mandamus to
cover the water channel and nallah constructed through the land of the
petitioner and his brother and make payment of compensation, after
properly acquiring their land used under the drain.
4. Pursuant to notice, respondent Nos. 1, 2 and 4 have filed objections,
pleading therein that at present the said Town Drainage Division, which
was earlier with the answering respondents had been abolished by the
Government vide Govt. Order No. 43-JK(HUD) of 2020 dated 04.02.2020
and in its place the PW(R&B) Department has taken over, as such,
grievance projected by the petitioner can be considered and looked after by
the PW(R&B) Division Kathua, as per the rules and subject to availability
of funds for the said work in due course of time; that as soon as the funds
are made available by the Government, the grievance of the petitioners can
be addressed as per norms.
5. It was denied that the respondent No.2 had given any assurance to the
petitioner for construction of the slab over the nallah as alleged but the
respondent No.2 had taken up matter with the Government for release of
funds which are yet to be released; that there was no obligation on part of
the respondents to acquire the land in question of the petitioner, as claimed,
in view of the fact that there already existed a drain which was repaired by
the respondent No.4 and no land of the petitioners had been
damaged/encroached upon or taken, therefore, there is no question of
acquiring this land. The respondents undertook that as and when funds are
made available, the grievance of the petitioner with regard to laying of slab
over the drain will be attended to as per norms in due course of time.
6. The PW(R&B) Division Kathua, had been impleaded as party respondent
No.5 in view of the winding up of Town Drainage Division by the
Government, by this Court vide order dated 14.09.2021 and notice was
issued to respondent No.5, however, despite several opportunities,
respondent Nos. 3 and 5 did not file response to the petition; that the
respondent No.2, Director Urban Local Bodies Jammu, vide
communication dated DULBJ/2017/12434 dated 01.03.2017 addressed to
the Commissioner/Secretary to Government, Housing and Urban
Development Department had requested for release of Rs.22.78 lacs as
estimated for covering of drain D/S Culvert at Kathua Town.
7. From the pleading of the parties, it appears that the official respondents
particularly the respondent-Department of Urban and Local Bodies is not
averse to covering the drain as prayed for by the petitioner and had also
taken steps in this direction seeking grant of funds from the Government of
J&K. The executing departments, such as, the Irrigation Division or
PW(R&B) Department being executing agencies shall also not have any
objection in case funds are made available by the respondent No.1, who has
the control over the subject under reference i.e drainage of the town of
Kathua Municipal Committee, to execute the work once the funds are
allotted.
8. In this view of the matter, this Court is of the considered opinion that no
further purpose shall be served to keep this case on board and also as
agreed by the learned counsel for the parties, the petition is disposed of at
this stage with a direction to the Department of Urban Local Bodies to take
steps for covering/laying slab over the drain in question n the petitioner's
land and arrange funds for the execution of the work at the earliest and the
executing agencies shall then be under an obligation to execute the work.
So far as the relief of acquisition of land in question, used for the
construction of drainage, which was owned by the petitioner, the petitioner
shall be at liberty to take up his cause with the Deputy Commissioner
concerned, who happens to be the Collector of the District and if his land
has been used, the Collector shall take steps for acquisition of land to pay
him compensation in accordance with law.
9. Disposed of as above, along with pending application(s)
(M A Chowdhary)
Judge
JAMMU
28.02.2024
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
