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2009 DIGILAW 111 (JK)

Haji Mohd. Ishaq v. State Of J. &K.

2009-03-16

BARIN GHOSH, MOHAMMAD YAQOOB MIR

body2009
Barim Ghosh, CJ (Oral) 1. Villagers of certain villages situated within the district of Kargil represented for creation of a new block to bring those villages within the said new block. They represented that the block in which they have been clubbed is inconvenient for them, for, they have to travel a long distance to reach to the block headquarter where they are required to discharge many a duties and functions in connection with the lands held by them in the villages. 2. This representation was being considered by the political executive when the location of the proposed headquarters of the new block, if sanctioned to be created, was also being considered. Ultimately, a political decision was taken to grant to the villagers of those villages a new block. The said decision was communicated by a Government decision dated July 6, 2005 when it was stated that the headquarters of the said newly constituted block shall be at Rahimthang. 3. In the writ petition filed by three petitioners in their personal capacity, they contended that the executive decision of fixing the headquarter of the new block, flowing from the political decision to create the said new block, was erroneous, improper, arbitrary and capricious, inasmuch as Rahimthang as the headquarters for the new block is not only inconvenient for the villagers, but the decision to select Rahimthang as the headquarters of the said new block is also contrary to the conscious decision of the State to locate all the State facilities in the village of Trespoon where not only the hospital is situate but also the sheep breeding farm has come up alongwith post office and other facilities. It was stated that village Trespoon was selected for all those facilities in view of the fact that the said village has become a halqa Panchayat which suggests that a large number of People are residing at the said village. It was suggested that there is no just reason why ignoring Trespoon, Rahimthang was chosen. In the counter affidavit filed by the State, while opposing the writ petition, it almost took a stand that the choice of Rahimthang having been made by the executive, the same is not interfereable and not, at least, at the instance of the writ petitioners. In other words, they contended that whatever they had done is beyond question and in particular by the petitioners. In other words, they contended that whatever they had done is beyond question and in particular by the petitioners. The private respondents, who were parties to the writ petition contended that taking into consideration the reasons as were then taken note of, it was decided to have the headquarters of the new block at Rahimthang. While the writ petition was pending, a corrigendum was issued on July 22, 2005 replacing the words "HQ. Rahimthang" to "HQ. Rahimthang- Marpothang" in the original notification dated July 6, 2005. On May 19, 2006 on the writ petition, an order of status quo was passed. Soon thereafter, by an order dated July 10, 2006, the said corrigendum was cancelled. The above actions led to filing of a fresh writ petition by the petitioners challenging the corrigendum as well as the rescission thereof. In that writ petition, they added one more private respondent who was then a Minister of the State. It was contended that it was at his instance Rahimthang was decided. They also filed a contempt petition, contending that the order of status quo has been breached by issuing the order rescinding the corrigendum. 4. The learned Single Judge, who dealt with the writ petitions, dismissed the same and also disposed of the contempt petition, principally, on the ground that the bases for fixing headquarter is based on consideration of executive requirement and, accordingly, executive exigency and preference outweighs anything else. While doing so, the learned Judge took notice of the judgment of the Honble Supreme Court rendered in the case of Union of India v. Kannadapara Sanghatanegala Okkuta & Kannadigara, 2002(10) SCC 226. The learned Judge also took note of a judgment of the Honble Supreme Court rendered in the case of Delhi Science Forum v. Union of India, 1996 (2) SCC 405. While the later case dealt with policy decision, with which we are not concerned here inasmuch as fixation of headquarter in no certain terms can be said to be a political decision or a policy decision, but the first mentioned case of the Honble Supreme Court may apply. At the same time, however, the same applies to headquarters of a venture with which public as such has no direct or indirect interaction. At the same time, however, the same applies to headquarters of a venture with which public as such has no direct or indirect interaction. In other words, when the headquarter of an organization with which the people have generally no scope of interaction, and is purely for meeting the requirement of administration, i.e., headquarter of a railway, is to be set up, the decision of the organization alone to locate the same should be taken note of and, in that connection, that decision itself will hold, for, it is the convenience of the organization alone that is to be taken note of. However, when the headquarter of a block is to be located, where the people will interact and will be interacted, the decision to locate the same must be taken in the backdrop of convenience of the people also for whose benefit the political decision to create a new block has been taken. The executive, while implementing such a political decision, cannot escape by saying that it has taken the decision. It would be required to show that, in the facts and circumstances of the case, the decision taken was a reasonable decision. 5. It is well settled in law that the writ Court does not deal with the decision rendered by an inferior authority. The writ Court also does not sit in appeal on a decision rendered by an inferior authority. The writ Court is only to see whether the decision making process adopted was fair and reasonable. 6. In the instant case, the process to select Rahimthang as the headquarter of the new block has not come on record. No record suggesting that there had been an application of mind to ascertain public convenience or inconvenience was produced before the writ Court. This Court gave an opportunity to produce the same. The records have been produced but they do not contain anything from where it can be gathered that any effort had been made, while fixing the headquarter of the new block at Rahimthang, to ascertain public convenience and inconvenience. 7. The conclusion, therefore, would be that the decision making process of selecting Rahimthang as the headquarter of the new block was so faulty that the decision rendered by adopting such procedure is vitiated as an illegal exercise of power and authority. 8. 7. The conclusion, therefore, would be that the decision making process of selecting Rahimthang as the headquarter of the new block was so faulty that the decision rendered by adopting such procedure is vitiated as an illegal exercise of power and authority. 8. Learned counsel for the State submitted that the writ petitions, at the instance of three petitioners not residing in the village Rahimthang, are not maintainable. He submitted that the writ petitions were not representative actions, and, accordingly, people of the new block were not interested in the manner interest had been shown by the petitioners. It was submitted that in the event the grievance of the petitioners are to be taken note of, then in future people residing in other villages, where also the headquarter has not been set up, would come and express their grievance. 9. The political decision to give a new block has been taken to benefit each and every resident of those villages which have been clubbed together under the said block. The said decision is for the benefit of each of such villagers. Each of them has equal right of being treated fairly. Each of them has a right to contend that he has not been fairly treated in the matter of selecting the headquarter. It is such right the petitioners have invoked in the said writ petitions. It cannot be said that as individuals they do not have any right to approach the Court and they were required to approach the Court only as representatives of other villagers residing in the locality. 10. The answer which the petitioners expect from the State would have been the answer to any other person as that of the petitioners challenging or questioning the decision to have the headquarter of the new block at Rahimthang. The answer in all such cases would have been establishment on facts that an effort was made to ascertain public element in choosing the site of the headquarter. That being absent in the instant case, in all other cases that may come in future, the State will face the same fate. 11. The answer in all such cases would have been establishment on facts that an effort was made to ascertain public element in choosing the site of the headquarter. That being absent in the instant case, in all other cases that may come in future, the State will face the same fate. 11. Learned counsel for the private respondents, namely, villagers who reside in the village Rahimthang, submitted that at the time proposal was made for carving out a new block for the villages in question, considering the situation of Rahimthang, it was decided that Rahimthang would be the best located place for having the headquarter of the new block. It is true that in a letter it was so indicated, but while doing so, surprisingly, one of the halqa panchayats, which formed part of the new block, had been totally left out. The said state of affair clearly demonstrates that while writing the said letter, the manner in which the said officer, i.e., the writer thereof, was obliged to discharge his duties owing to the villagers of the said villages, did not discharge the same and, accordingly, that letter cannot be said to be a piece of evidence suggesting that the executive discharged its obligation in selecting Rahimthang as headquarter of the said block in public interest or by taking into account public elements. It is true that before the decision was taken, a report was submitted where it was stated that Rahimthang be the headquarter of the new block to be created, but the fact remains that the report did not suggest why Rahimthang and not any other village shall not be selected for establishing the block headquarters. 12. The conclusion, therefore, would be that the decision to establish headquarter of the new block at Rahimthang is a product of caprice based on ipse dixit of the officers of the State and, therefore, cannot stand the test of law. 13. Learned counsel for the private respondents cited a Single Bench judgment rendered in Bijita Saha v. State of Tripura, AIR 2006 Guahati 61, for the preposition that the writ Court cannot direct change of location of a hospital to be set up by the State. We do not think that the same can be an absolute preposition. 13. Learned counsel for the private respondents cited a Single Bench judgment rendered in Bijita Saha v. State of Tripura, AIR 2006 Guahati 61, for the preposition that the writ Court cannot direct change of location of a hospital to be set up by the State. We do not think that the same can be an absolute preposition. If on the basis of ipse dixit and mala fide on the part of the officers of the State, a benefit by way of a hospital is to be given to the people, but is given to a class of people, ignoring the mass, the writ Court will not backtrack from issuing appropriate writs. The other judgment cited by the said learned counsel was rendered in the case of Uttaranchal Training and Employment Karamchari Samgharsh Samiti v. State of Uttaranchal, AIR 2005 Utt 58, for the preposition that decision of location of a Government office rests in the Government and the writ Court has no jurisdiction to interfere therewith. In that case, the question was shifting of the Directorate of Employment and Training from Haldwani. Though such an office of the Government is established for the benefit of the people but the people have no direct interaction therewith; whereas headquarter of a block is established only for the purpose of interacting with and by the people and not for any other purpose. 14. In the circumstances, these appeals are allowed and the judgment under order and appeal is set aside. The writ petitions are allowed but, at the same time, no further steps be taken in the contempt petition and the same be deemed to have been closed. The Government is directed to ascertain, within a period of six months from today, in such manner and mode as it may deem fit and proper, which location of the headquarter for the said new block would best suit the public purpose for which the said block has been carved out and thereupon to install, within a period of further six months therefrom, the headquarter of the said block at such location. It goes without saying, that within a period of six months from today, the Government of its own, would issue appropriate notification, if necessary, altering the headquarter of the said block upon consideration of what has been directed above. It goes without saying, that within a period of six months from today, the Government of its own, would issue appropriate notification, if necessary, altering the headquarter of the said block upon consideration of what has been directed above. It is made clear that until such time such new notification is issued, it shall be perfectly valid and justified for the Government to operate the headquarters for the said newly created block at and from where the same is operating at present.