Jammu & Kashmir High Court - Srinagar Bench

Mohammad Hussain vs National Highways Infrastructural on 13 May, 2025

Author: Sindhu Sharma

Bench: Sindhu Sharma

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

WP(C) No. 548/2022
CM Nos. 5601/24,1368/22, 1369/22,3722/23, 4034/22 & 2144/2024

                                            Reserved on : 17.10.2024
                                            Pronounced on : 13.05.2025

Residents of village Dangochey/
Gramthang Minjee District Kargil Th.
1.Mohammad Hussain
  S/O Mohammad Hadi
2. Sajad Hussain (Village Panch)
   S/O Haji Mohammad Hassan
3.Farida Batool (Village Panch)
  D/O Mohammad Jaffar
 All residents of Dangochey/
 Gramthang Minjee, District Kargil
                                               ....Petitioner/Appellant(s)


                           Through:- Mr. M. Tufail, Advocate with
                                     Mr. Mir Aamir, Advocate

                     V/s

1.National Highways Infrastructural
  Development Corporation Ltd.
  MoRTH, Govt. of India
  New Delhi
2. Executive Director(P)
   R/O-Ladakh, NHIDCL,
  MoRTH, Govt. of India
  Yartsa House, New Changspa Farm
  Changspa, Leh-Ladakh
3.General Manager(P)
  MoRTH, Govt of India
  Project Monitoring Unit-Kargil
4.Chairman/Chief Executive Councilor,
  LAHDC, Kargil
5.Divisional Commissioner
  Ladakh
6. Deputy Commissioner/CEO
   Kargil
7. Assistant Commissioner Revenue
   (Collector Land Acquisiti8on)
    Kargil
8. SDM, Sankoo
   District Kargil
                                           2            WP(C) 548 of 2022




9. Tehsildar
   Sankoo Kargil
10. District Superintending Engineer
    PWD Circle, Kargil
11. Executive Engineer
    R&B Division-II, Kargil
    (Nodal Officer)
    Kargil-Zanskar, National Highway
    Kargil
12. General Manager(T) (LO)
    MoRTH Govt. of India
    3rd Floor, PTI Building 4-Parliament Street
    New Delhi
13. Union of India, through
    Secretary to Govt. of India
    Ministry of Road Transport and Highways
    New Delhi.

                                                    ;.....Respondent(s)

                         Through:- Mr. T. M. Shamsi, DSGI with M/s
                         Faizan, CGC and Bisma, Advocates

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                                 JUDGMENT

1. The petitioners, through the medium of the instant petition have

challenged order dated 23.02.2022 issued by respondent No. 2 i.e.,

Executive Director (P) RO-Ladakh, NHIDCL. The order dated

23.02.2022 is a speaking order passed by Respondent No. 2-Executive

Director (P), whereby the petitioners' representation stands rejected.

2. The representation of the petitioners was considered in compliance

with the directions issued by a Coordinate Bench of this Court in an

earlier round of litigation, being W.P. (C) No. 1896/2021. In the earlier

writ petition, the petitioners had, inter alia, sought a writ of mandamus

directing the respondents to change the realignment/diversion of the

National Highway to the link road already sanctioned by NHDC, Kargil 3 WP(C) 548 of 2022

vide order dated 10.07.2020. Further direction was sought to pass a

speaking order on the representation/objections of the people for diversion

of the National Highway Kargil-Zanskar Road, so as to prevent any

damage to their houses and agricultural land.

3. The petitioners are permanent residents of Village Dangochey and

Gramthang Minjee, District Kargil, UT of Ladakh. Their grievance is that

proposed construction of NH-301 from Kargil to Zanskar is likely to

demolish a large number of residential houses and agricultural lands of the

said villages. The Ministry of Road Transport and Highways (MoRTH),

Government of India, approved the construction of the National Highway

No. 301 from Kargil to Zanskar, which was to pass through the centre of

the petitioners' village. It is stated that the implementation of the proposed

alignment will cause irreparable damage to the residents of

Dangochey/Gramthang Minjee, as their houses would be dismantled and

their agricultural land rendered useless, causing severe socio-economic

hardship.

4. Aggrieved by the aforesaid alignment, the petitioners submitted

representations dated 18.12.2017 and 22.12.2017 before the Assistant

Commissioner Revenue (Collector, Land Acquisition), Kargil, requesting

the authorities to reconsider the alignment and adopt the existing link road

route as an alternative. The said representations were forwarded to the

Executive Engineer, R&B Division-II, Kargil, who is also the Nodal

Officer for the Kargil-Zanskar National Highway. Another representation

was submitted by the petitioners to Feedback Infra Pvt. Ltd., seeking

modification of the alignment between Km 10+000 to Km 15+000 to 4 WP(C) 548 of 2022

avoid damage to residential and agricultural properties. The Feedback

Infra Pvt. Ltd. vide its communication dated 29.01.2018 forwarded the

same to Respondent No. 10 for appropriate action and also instructed that

the matter be placed before the DSE. A copy was also sent to the

Executive Engineer, R&B Division-II, Kargil. It is stated that despite the

aforementioned steps, no conclusive action was been taken by the

authorities and the Petitioners' representations remain unaddressed.

5. It is contended that while the aforementioned representations were

still pending consideration by the respondents, respondent No. 6, by order

dated 10.07.2020, accorded sanction for Administrative Approval for the

"Construction of L/R Bathay (NH) to Dangochey via Grave Yard

Gramthang Jalasa" at an estimated cost of ₹144.74 lakhs. Upon learning

of the said order, the petitioners submitted another representation dated

07.07.2020 to respondent No. 2, requesting that the proposed National

Highway be realigned to the link road for which the above-mentioned

sanction had been granted. This was followed by a further representation

dated 04.08.2021 addressed to His Excellency, the Governor of the Union

Territory of Ladakh, urging intervention and seeking the relocation of the

National Highway from Kargil to Zanskar (NH-301) onto the sanctioned

link road. Additionally, the petitioners issued a legal notice to respondent

No. 4 on 08.08.2021, requesting a change in the alignment and diversion

of the National Highway (NH-301) Kargil-Zanskar.

6. It is further contended that respondent No. 2, vide communication

dated 06.09.2021, informed the Managing Director, NHIDCL, Leh, that

the public representatives of Village Gramthang Minjee, District Kargil, 5 WP(C) 548 of 2022

had raised serious concerns regarding the construction works of the

Kargil-Zanskar Highway at Km 14. It was stated that the proposed

alignment of the highway would adversely affect the residents, as their

housing settlements were likely to be demolished, resulting in their

displacement and causing significant loss to the existing infrastructure. In

view of this, the villagers suggested a realignment of the National

Highway by diverting it through nearby state land, which, according to

them, could serve as a viable bypass. Respondent No. 2, accordingly,

requested the Managing Director to consider the matter and explore the

feasibility of diverting the highway to avoid the anticipated damage and

facilitate smoother execution of the project, which has been a

longstanding demand of the people of the Zanskar Sub-Division. Despite

the communication, no action was taken by the concerned respondents.

Consequently, the petitioners were constrained to file WP(C) No.

1896/2021 before this Court, seeking a writ of mandamus directing the

respondents to change the alignment of the Kargil-Zanskar Highway to

prevent damage to their houses and agricultural land.

7. The writ petition was adjudicated by a Coordinate Bench of this

Court, which held that the Court lacked the requisite technical expertise to

issue a direction regarding the alignment of the National Highway, such

matters being within the exclusive domain of experts. However, the Court

disposed of the petition with a direction to the respondents to consider and

pass appropriate orders on any representation submitted by the villagers

seeking realignment of the highway.

6 WP(C) 548 of 2022

8. It is contended that, in order to consider the case of the petitioners,

a meeting was held on 02.12.2021, during which the matter was discussed

at length and the following options were formulated:"

"Option-01: - Total length of the re-alignment portion will be 5.90 Km 0+000 Kms. The alignment will pass in front of new District Hospital and Council Secretariat. The alignment meets the permissible technical specifications and will have bridge at KM 05+700 of 100m. Land acquisition will not have major issue as majority of the land is Govt. land. Few shops/buildings on the left side will have to be acquired and demolished. This alignment is recommended by NHIDCL.

Opstion-02: - This alignment will pass in front of new District Hospital and All India Radio (AIR) campus. Total length of the realignment will be 6.22 Kms. the alignment does not meet the permissible technical specifications with 9-10% gradient and also certain stretches will have formation cutting up to a height of more than 30m."

9. It is stated that, after considering the concerns raised and the

discussions held, respondent No. 3 informed respondent No. 2 that the

scope of work from Km 0+000 to Km 06+000 should be reduced, and that

the remaining stretch from Km 06+000 to Km 30+040 should be

completed. Accordingly, the necessary approvals were sought to proceed

further. In a communication dated 14.12.2021, respondent No. 3 referred

to an earlier letter dated 08.12.2021, wherein a proposal for the

realignment of the Kargil-Zanskar Road (NH-301), Package 1 (Km 0+000

to Km 6+000), had been submitted to the Deputy Commissioner, Kargil.

This proposal also referenced the directions issued by respondent No. 1

during a meeting held at Kargil on 14.02.2022. A map showing two 7 WP(C) 548 of 2022

alignment options (Option 1 and Option 2) was enclosed with the letter

for consideration.

10. It is further contended that on the same day (14.02.2022), a meeting

was chaired by the Hon'ble Lieutenant Governor in New Delhi, attended

by the Managing Director of NHIDCL. During the meeting, a status

update on ongoing infrastructure projects in Ladakh was presented. The

issue concerning the village stretch of the Kargil-Zanskar Road was

specifically highlighted. It was felt that this particular stretch should be

de-notified to prevent further delays. It was decided that while the

remaining work on the project should continue within the stipulated

timeframe, the proposed realignment should be taken up separately.

However, despite these discussions, directions, and the prevailing

circumstances, respondent No. 2 rejected the petitioners' representation

vide the impugned order dated 23.02.2022. The rejection was based on the

reasoning that the realignment or diversion of the National Highway, as

requested by the petitioners, was not feasible.

11. Per contra, the respondents have vehemently opposed the reliefs

sought in the present petition and have filed their objections/counter

affidavit accordingly.

12. According to respondents 1 to 3, the alignment of the project is

based on its feasibility, which is determined through field inputs and

viability assessments. They assert that the alignment cannot be altered

based on mere conjecture, as such, changes would disrupt the entire

project and adversely affect its feasibility, ultimately harming public

interest. It is further stated that Dongochey Gramthang and Minjee 8 WP(C) 548 of 2022

villages are located along the Kargil-Zanskar National Highway 301,

approximately 10 to 12 kilometers from the District Headquarters at

Kargil. However, certain interior parts of Dongochey Gramthang, such as

Jalasa, are not connected by road. In response to representations made by

the villagers through the Hon'ble Councilor of the area, the LAHDC

Kargil approved the construction of a road specifically to connect these

isolated villages. Respondents 1 to 3 further contend that, after duly

considering the petitioners' representations and assessing the relevant

facts and circumstances, the NHIDCL explored all possible options for

realigning the proposed stretch. It ultimately concluded that realignment is

not feasible.

13. Respondent No. 6 has also filed objections, wherein a stance similar

to that of respondents No. 1 to 3 has been adopted. It is submitted that the

proposed alignment was analyzed on all technical parameters and

financial aspects at various levels and was accordingly sanctioned by the

Government of India on 31.03.2021. Respondent No. 6 has categorically

stated that no orders have been issued by the Administration of the Union

Territory of Ladakh to de-notify the particular stretch of land. It is further

stated that land acquisition activities for the project are currently in

progress. The Draft 3-A Notification for the concerned villages was

uploaded by the Competent Authority of Land Acquisition (CALA-DC,

Kargil) on the Bhoomi Rashi Portal on 30.12.2021. Therefore, any

realignment would necessitate repeating the land acquisition process,

which would consequently, delay the completion of the project.

9 WP(C) 548 of 2022

14. Counter affidavit has also been filed by the respondents, stating that

the work sanctioned by the Government of India involves widening the

existing alignment of NH-301 to a two-lane highway with paved

shoulders. It is contended that the link road suggested by the petitioners

does not fall on the existing NH-301. The matter was reconsidered, and a

meeting was held between the Hon'ble Lt. Governor of the UT of Ladakh

and the MD of NHIDCL on 19.08.2022. During this meeting, the minutes

of the meeting dated 14.02.2022 were reviewed, and fresh minutes were

prepared in accordance with the communication dated 24.08.2022.

15. A perusal of the communication dated 24.08.2022 indicates that

during the meeting, CMD provided a status update on the ongoing

projects in Ladakh. The issue concerning the village Minjee realignment

Kargil-Zanskar road was raised. It was apprised that speaking order was

issued. A group of villagers submitted a representation expressing their

willingness to proceed with the project, offering their land and other

assets for the development of the road.

16. Heard learned counsel for the parties and perused the material on

record.

17. In the present case, the petitioners are aggrieved by the order dated

23.02.2022 a speaking order passed by respondent No. 2, Executive

Director (P) rejecting their representation concerning the realignment/

diversion of the National Highway on the Kargil-Zanskar road, as the

same was not feasible. The reasons given for rejecting the petitioner's

representation by Respondent No. 2, the Executive Director (P), are as

follows:-

10 WP(C) 548 of 2022

(i) "The work sanctioned by the Govt. of India is for Widening of existing alignment of NH-301 to Two Lane with Paved Shoulders. The suggested link road by the petitioner does not fall on the existing NH-301;

(ii) The proposed alignment takes off from existing NH-301 at Km 10+750 and meets the same NH-301 at Km 13+900. The proposed alignment by the villagers passes through a green field alignment along a Kutcha Track on the hill slopes having steep gradient, likely avalanche sites, graveyard and crossing perennial mountain stream;

(iii) Length of this alignment will be approximately 4.2 Km as against existing 3.l5 Km of existing NH-301 on which the work is sanctioned and the same will cause financial burden on the Government exchequer;

(iv) The alignment proposed by the villagers is far away from the village which is defeating the purpose of public convenience;

(v) Any other option of realignment at the aforesaid stretch will not serve the purpose of all-weather connectivity of NH as any deviation of the stretch from original alignment would expose the road to severe avalanche-prone sites in winters and rock-falls in summer season, owing to the steep slopes across the Suru River. The same shall lead to increase in cost of construction as well as maintenance of NH, as the cliff is generally composed of fissured rocks and rock- stabilization works on the stretch shall incur heavy-financial liabilities on the project. Thus, leading to delay in project;

(vi) Any re-alignment proposal shall require preparation of fresh DPR along with new proposed route and sanction of the project by the Competent Authority which would lead to delay in completion of the said project of National & Strategic importance for over 4-5 years with escalated cost;

(vii) Any additional financial implication likely to be incurred on the on the project has to be sanctioned by the Competent Authority which is a time-consuming process;

(viii) The alignment was proposed after detailed survey, geotechnical studies & on the basis of all the technical parameters required as per National Highway specifications. Accordingly, the proposal was analysed on all technical parameters and financial aspects at all levels & accordingly sanctioned by GOI vide letter No. A-

l2025/28/2021/Ladakh-Pkg-I-NHIDCL Cell dated 31.03.2021;

(ix) The authority along with UT Administration has reviewed the issue over several meetings and has already complied with the recommendations/directions issued towards limiting the ROW to 12 m instead of originally proposed 18 m. Therefore, efforts have been deliberated repeatedly over the same and this outcome of timiting the ROW has been 11 WP(C) 548 of 2022

worked out as the only feasible solution despite numerous brain-storming sessions;

(x) The Land Acquisition activity in the said project is in progress. Draft 3-A Notification for the referred villages has been uploaded by Competent Authority of Land Acquisition (CALA-DC, Kargil) on Bhoomi Rashi Portal dated 30.12.2021 and the same is expected to be approved shortly. Compete Land Acquisition process is expected to be completed by 31.03.2022, i.e. before the start of next working season. Hence, the LA Activities done so far shall have to be redone on realignment and will delay the project for another 6 months beyond March 22, which is equivalent to one complete working season. Thus, leading to heavy finance implications and unnecessary delay in the project;"

18. Perusal of the order dated 23.02.2022 reveals that, after considering

the representations submitted by the petitioners and taking into account

the prevailing facts and circumstances, the National Highways and

Infrastructure Development Corporation Limited (NHIDCL) explored all

possible options for the realignment of the stretch between km 10+000

and km 15+000. However, the realignment/diversion sought by the

petitioners was found to be unfeasible. It further appears that the proposed

alignment was determined following a detailed survey, geotechnical

studies, and in compliance with all technical parameters prescribed under

the National Highway specifications. The proposal was thoroughly

analysed from both technical and financial perspectives at all levels and

was subsequently sanctioned by the Government of India.

19. The Coordinate Bench while disposing of the writ petition was

clear that the decision of the issue was best left to the experts, as the Court

was not well equipped to decide alignment of the road. It constitutes a

speaking order that sets out the grounds for the rejection of the petitioners'

representation. The impugned order dated 23.02.2022 is a reasoned 12 WP(C) 548 of 2022

decision issued by the respondents pursuant to the directions passed in

W.P.(C) No. 1896/2021.

20. Since the Competent Authority pursuant to the directions passed in

W.P(C) No. 1896/2021 have decided the representations of the

petitioners, the jurisdiction of this Court to interfere in such a situation is

already settled by several decisions of the Supreme Court.

21. The Supreme Court in case titled Union of India v. Kushala

Shetty and others [2011 (12) SCC 69] has held that the projects

involving 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. The relevant portion

of the judgment is extracted hereunder :

Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving 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 development and maintenance of national highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The court can nullify the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither has any violation of mandate of the 1956 Act been established nor has the charge of malice in fact been 13 WP(C) 548 of 2022

proved. Therefore, the order under challenge cannot be sustained.

22. In the present case, no specific mala fides are alleged against the

National Highway authorities for adopting the alignment from Kargil to

Zanskar (301). The petitioners only seek realignment/diversion of the

National Highway on the Kargil-Zanskar road with a view to avert any

damage to their houses and agriculture land. While invoking the powers

under Article 226 of the Constitution of India, this Court cannot sit in

appeal to a decision of the National Highway Authorities, a statutory body

having expertise in the field. Unless there is patent illegality or mala fides,

this Court is not in a position to interfere with an alignment finalized by

the National Highway Authority.