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2013 DIGILAW 624 (JK)

Aftab Hilali Shah v. State of J&K

2013-10-24

ALI MOHAMMAD MAGREY, M.M.KUMAR

body2013
JUDGMENT : 1. This writ petition, professed to be in public interest, seeks to question the decision of the Government relating to construction of a bridge over River Jhelum near the Presentation Convent School, Rajbagh. The credentials of the petitioners and the cause in the name of public interest sought to be pleaded by them need to be stated. As per the averments made in the petition, petitioner No. 1 is an Advocate; petitioners 2, 3 and 4 are teachers and petitioner No. 5 a writer and social activist. They claim to be conscientious citizens interested in issues of development and environment. It is stated that in the present petition they have nothing to gain, as they are not seeking enforcement of their personal rights; they are pursuing different professions. Their case is that the proposed/intended action of the respondents, i.e., construction of the bridge over river Jhelum, being contrary to public interest, adversely affects the environment, norms of school, security of children etc. According to them, these primary issues concern the public in general and particularly of those residing within the Municipal limits of the City of Srinagar. It is averred that the decision to construct the bridge is actuated by considerations other than public convenience or decongestion of traffic and that there are powerful/influential persons who stand to benefit by the proposed construction as they need access to their commercial establishments which have been set up in Raj Bagh area, which is a declared residential area it is also stated that the proposed/intended action is not supported by the Master Plan sanctioned for the City of Srinagar, and that the decision is arbitrary, contrary to norms of development and, above all, to law regulating the planned development of the City. It is averred that the writ petition is filed by them in public interest seeking intervention of this Court to judicially review the intended/proposed action of the respondents. 2. Petitioners, in paragraph 2(i) to 2(vi) of the writ petition, have delineated the efforts stated to have been taken by them, before filing the present writ petition, to dissuade the Government from proceeding ahead with the proposed construction. 2. Petitioners, in paragraph 2(i) to 2(vi) of the writ petition, have delineated the efforts stated to have been taken by them, before filing the present writ petition, to dissuade the Government from proceeding ahead with the proposed construction. In order to demonstrate the real interest of the petitioners in filing the present writ petition, it would be apt to reproduce hereunder paragraphs 2(i) and 2(vi) hereunder: "(i) The petitioners and various other parents of the children who are studying in Presentation Convent School called on the then Minister of State (Home) on 2.6.2012 urging him to prevent the construction of the bridge in the interest of the security of the children and to prevent likelihood of crime being committed against the children. It is submitted that the Hon'ble Minister did not agree to the submissions. (vi) That on 13.10.2012 about 100 students were invited by the Hon'ble Governor to Raj Bhawan. The students of IX Class alongwith few staff members and the Principal of the School visited the Raj Bhawan. The students also appealed His Excellency to prevent construction of the bridge next to their school." In paragraphs 3(a) to 3(p), the petitioners have made mention of some newspaper reports and write ups of a few individuals wherein they have spoken against construction of the bridge in question. If anything material and substantial is highlighted by the submissions made therein that is that the proposal to construct the bridge had been finalized way back in nineteen eighties. It is stated that the proposal was resisted by the establishment at that point of time. In paragraph 4 of the petition, it is stated that a memorandum was submitted to his Excellency the Governor by the students of the aforesaid School on 13.10.2012. In the very same paragraph, the petitioners have also stated that they have been able to lay their hands on the brochure prepared by the Public Works Department regarding the new bridge. The petitioners have also outlined the reasons, as contained in the Brochure, for construction of the bridge. It would be advantageous to extract herein the portion of the averments made in that regard in paragraph 4 of the petition: "The preliminary reason according to the respondents for construction of the bridge is increase in number of vehicles during last one and a half decade. It would be advantageous to extract herein the portion of the averments made in that regard in paragraph 4 of the petition: "The preliminary reason according to the respondents for construction of the bridge is increase in number of vehicles during last one and a half decade. The justification provided is that there are frequent traffic jams on either (side) of the Abdullah Bridge during peak hours thus causing inconvenience to the commuters. The paper concludes that the construction of the bridge will give relief to the commuters. The bridge is intended to be in length 120 Metres. Its carriage-way is intended to be 9 metres with footpath of 1.65 metres on either side. The bridge is to have 3 spans. The angle of the skew is 8 degree. The project cost of the bridge is Rs. 919.42 Lacs. It is expected to be completed in August, 2014." Upon notice, respondent No. 2, the Chief Engineer, Public Works Department (R&B), Kashmir, and respondent No. 8, Chief Town Planner, Town Planning Organization, Srinagar, have filed their respective replies which contain almost similar statements controverting the concerns raised by the petitioners. It is stated that the Project Improvement to Road Communication System in Srinagar City was approved by the Government of Jammu and Kashmir vide order No. 668/UD of 1981 dated 13.10.1981 pursuant to which the Circular Road Project came into existence. The Project envisaged construction of new roads and bridges; improvement, up gradation, widening of some existing roads etc. and connectivity of southern parts of the city with northern parts. It is also stated that in the 1971-91 Master Plan there was a vision for the North-South corridor connecting the southern parts of the city with the core and the northern areas. It was as per this vision that a four lane road was constructed on southern side of river Jhelum, starting from Haft Chinar to Rajbagh, which runs adjacent to the Presentation Convent School and connects the Srinagar Airport to the Tourist Reception Centre and there onwards to the Foreshore Road. On the northern side, another four lane road adjacent to State Road Transport Corporation Head-quarter-Sangarmal was constructed. There was a proposal for construction of a four lane Bridge-cum-flyover connecting the two four lane corridors, but that work could not be undertaken due to lack of funds. On the northern side, another four lane road adjacent to State Road Transport Corporation Head-quarter-Sangarmal was constructed. There was a proposal for construction of a four lane Bridge-cum-flyover connecting the two four lane corridors, but that work could not be undertaken due to lack of funds. However, a two lane bridge connecting the Haftchinar Rajbagh four lane road to Tourist Reception Centre was constructed. The bridge being only two-lane, it is stated that during the last decade the bridge as well as the approach road on Rajbagh side have become major bottlenecks for the traffic. It is also stated that the location of the bridge has resulted in dead mileage for north bound vehicles and traffic congestion at Tourist Reception Centre. It is further stated that having a bridge parallel to Abdullah Bridge would burden the Tourist Reception Centre as well as the Rajbagh side of the road and completely block the road. That apart, such a proposal would drastically affect the Emporium Garden and the heritage building existing therein. It is averred that in view of the traffic congestion and forced flow of traffic on the bridge which is likely to increase day by day, the Government decided to construct an additional bridge near the Convent Junction in the first phase and a flyover up to Fakhri Kashmir Bridge, which lies ahead of State Road Transport Corporation Headquarters, in the second phase for relieving the MA Road, Residency Road, Lal Chowk, Budshah Chowk and Jehangir Chowk of unnecessary north bound traffic. The bridge and flyover have become inevitable to increase the level of service of northern roads and two major arteries in Srinagar M. A Road and Residency Road. According to the respondents, construction of a bridge parallel to the existing Abdullah Bridge will not provide direct connectivity of Haftchinar-Rajbagh 4-lane road with the existing four lane road running adjacent to State Road Transport Corporation-Sangarmal and Fakhri Kashmir Bridge on the Eastern Foreshore road as no flyover from Tourist Reception Centre upto Fakhri Kashmir Bridge is possible. On the other hand, it is easily possible and convenient to connect the proposed bridge via a flyover directly with the Fakhri Kashmir Bridge. It is also stated that the State Government constituted expert bodies who have decided the laying of proposed bridge as a viable site and that such expert opinion cannot be interfered with. On the other hand, it is easily possible and convenient to connect the proposed bridge via a flyover directly with the Fakhri Kashmir Bridge. It is also stated that the State Government constituted expert bodies who have decided the laying of proposed bridge as a viable site and that such expert opinion cannot be interfered with. The respondents have questioned the right of the petitioners to file the writ petition, stating that there is no public interest involved in the petition. It is further submitted that the bridge-cum-flyover was part of Master Plan 1971-91. Part of the project was implemented, but due to paucity of finances, the project could not be completed and is now in the process of completion. It is also stated that 30% of the work on the Bridge has been completed at a cost of Rs. 991 lacs. The concerns about environment and ecology have also been rebutted and refuted. 3. Respondent No. 2 in his reply has additionally stated that the Hon'ble Court is seized of PIL No. 458/2003 titled Kashmir Consumer Welfare Forum v. State of J&KJ wherein number of directions have been issued to decongest traffic movement on the Residency Road and Lal Chowk areas, and in order to implement the said directions, the proposed bridge is one of the steps to ensure free flow of traffic and overcome traffic jamming in the Residency Road and Rajbagh areas. It is also stated that the said bridge is proposed to be used as one way for south north traffic; whereas the Abdullah Bridge would be used as one way for north south traffic. Respondent No. 2 has also denied the concerns of the petitioners that the proposed bridge will affect the security of their children or that there is likelihood of crime being committed against children. It is stated that such apprehensions are not based on facts when around the school 4-lane road is already available over which commercial and private traffic is moving. Besides, numbers of offices like that of PWD, Hotel Management School, and Income Tax Office etc. exist where thousands of persons, including officials, are regularly using the on 4-lane Rajbagh road running abreast the School. Besides, numbers of offices like that of PWD, Hotel Management School, and Income Tax Office etc. exist where thousands of persons, including officials, are regularly using the on 4-lane Rajbagh road running abreast the School. It is also submitted that most of the private and missionary schools, like Mallinson (Girls) School, Biscoe School, Burn Hall School and Delhi Public School are located in built up areas which have continuous flow of traffic, but they do not hinder any developmental works undertaken around these schools, nor do they complain of any disturbance in studies nor raise security concerns. 4. We have heard learned counsel for the parties and considered the matter. 5. The fundamental question that arises for consideration is whether the petitioners are really espousing a public cause in the petition. The contents of the petition, as narrated and quoted above, overwhelmingly make it axiomatic that the petitioners have absolutely no public interest. Their endeavour, acting as proxy, is to protect the so-called interests of the School without minding about the larger interests of the populace. The environmental and ecological concerns sought to be raised are merely aimed at giving this petition a colour of public interest litigation. This is also borne out by the contents of paragraph 5(h) of the petition which is reproduced hereunder: "That the only cause for constructing the bridge is to decongest the traffic on the Abdullah Bridge. It is submitted if that was the reason, the ideal location to construct the bridge was to construct it next to the Abdullah Bridge down stream. There is a sufficient open space for construction of the bridge. It is expected cost will be less because the span of the straight bridge is less than the proposed 120 metres of skewed bridge. Both the bridges, parallel to each other can be used for one way traffic. Despite the availability of space, powerful and influential persons within the Government are keen to construct the bridge near the school for the reasons stated above. The petitioners submit that the proposed construction demonstrates poor and haphazard planning. The decision to construct the bridge is not bona fide and is outcome of commercial interest. It is not a genuine investment of public funds. Its construction cannot be justified on any ground whatsoever. The petitioners submit that the proposed construction demonstrates poor and haphazard planning. The decision to construct the bridge is not bona fide and is outcome of commercial interest. It is not a genuine investment of public funds. Its construction cannot be justified on any ground whatsoever. (Underlining supplied)" The above statements made in the petition clearly show that the petitioners are not actually against construction of the bridge, but are against its location. The so called concerns sought to be raised by them as to environment, ecology etc., therefore, are in genuine and vexatious. The location of the bridge essentially is not to the liking of the management of the school for which, it has been specifically stated in the petition, they have even been using the students of the school to persuade the Government not to construct the bridge at its selected location. The statements made in the petition thus clearly demonstrate that the petitioners are actually acting as proxy of the management of the Presentation Convent School who have all through been against construction of the bridge near the school. 6. It needs a mention here that litigations in public interest are not adversarial in nature. It is a product of realization of constitutional obligation of the Courts. This jurisdiction has been carved out by judicial creativity in order to provide access to poor, deprived, vulnerable, discriminated and marginalized sections of the society. Of course, it has been expanded to protection of ecology and environment and to such matters where the executive is acting in violation of law. But the basic factor remains that only such petitions are required to be entertained where the petitioners is/are acting bona fide and not for personal gain, private profit, political motivation or other oblique or extraneous considerations. This petition on the face of it has been filed for oblique and extraneous considerations acting as proxy. There is catena of judgments of the Supreme Court where such practice has not only been deplored, but people filing such petitions have been burdened with costs. Reference in this regard may be made to the decision of the Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 . There is catena of judgments of the Supreme Court where such practice has not only been deplored, but people filing such petitions have been burdened with costs. Reference in this regard may be made to the decision of the Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 . In paragraphs 143 to 158, the judgment contains reference to its earlier decisions in BALCO Employees Union v. Union of India, (2002) 2 SCC 333 ; S.P. Gupta v. Union of India, 1981 Supp SCC 87; Chhetriya Pardushan Mukti Sangharash Samiti v. State of U. P., (1990) 4 SCC 449 ; Neetu v. State of Punjab, (2007) 10 SCC 614 ; S.P. Anand v. H.D. Deve Gowda, (1996) 6 SCC 734 ; Sanjeev Bhatnagar v. Union of India, (2005) 5 SCC 330 ; Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590 ; Char an Lal Sahu v. Zail Singh, (1984) 1 SCC 390 ; J. Jayalalitha v. Govt. of T. N., (1999) 1 SCC 53 ; and Holicow Pictures (P) Ltd. v. Prem Chandra Mishra (2007) 14 SCC 281 wherein the Supreme Court broadly tried to curtail the frivolous public interest petitions by monetary and non-monetary methods. In Dattaraj Nathuji Thaware v. State of Maharashtra (supra) it was observed that Court must not allow its process to be abused for oblique considerations. In Sanjeev Bhatnagar v. Union of India (supra), the Supreme Court found that the petition was devoid of public interest and dismissed the petition with costs of Rs. 10,000. In Holicow Pictures (P) Ltd. v. Prem Chandra Mishra (supra) the Supreme Court in paragraph 12 of the judgment observed as under: "It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. 10,000. In Holicow Pictures (P) Ltd. v. Prem Chandra Mishra (supra) the Supreme Court in paragraph 12 of the judgment observed as under: "It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters government or private, person awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenue expecting their release from the detention orders, etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, break the queue muffing their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system." While dealing with the case State of Uttaranchal v. Balwant Singh Chaufal (supra), the Supreme Court issued certain directions for observance of the High Courts, which included the following two directions: "(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation; (8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations." 7. Coming to the present case, as noticed above, given the contents of the writ petition, particularly those contained in paragraph 5(h) thereof, it becomes manifest that the writ petition in the guise of public interest has been actually filed for oblique motives as a proxy for the management of the School. Therefore, it can safely be said that they have come to the Court not with any genuine cause involving larger public interest. On the contrary, they seek to stall a project that has been going on since 1981 pursuant to Government-order 13.10.1981 aimed at enhancing road connectivity which involves larger public interest. 8. Though in light of the statements and submissions made in paragraph 5(h) of the petition, the other grounds taken in the writ petition and argued by the learned counsel pale into insignificance, yet given the facts and circumstances of the case, none of these grounds is sustainable. 9. In regard to the first ground that the construction of the bridge does not find a mention in the Master Plan 2000-2021, it is specifically stated on behalf of the respondents that construction of the bridge was envisioned in the 1971-91 Master Plan and that Project Improvement to Road Communication System in Srinagar City was approved by the Government of Jammu and Kashmir vide order No. 668/UD of 1981 dated 13.10.1981 pursuant to which the Circular Road Project came into existence. The Project envisaged construction of new roads and bridges; improvement, up gradation, widening of some existing roads etc. and connectivity of southern parts of the city with northern parts. It is stated that part of the project was implemented but it could not be completed on account of lack of finances. Therefore, it is not a case where the construction of the bridge was not at all mentioned in any of the Master Plans or that it runs contrary to any specific provision of the Master Plan. 10. It is stated that part of the project was implemented but it could not be completed on account of lack of finances. Therefore, it is not a case where the construction of the bridge was not at all mentioned in any of the Master Plans or that it runs contrary to any specific provision of the Master Plan. 10. The first ground on which the decision to construct the bridge is challenged is that the Master Plan sanctioned by the Government and promulgated vide SRO 28 of 2003 dated 30.01.2003 has not made any provision for construction of bridge next to the Presentation Convent School and that under the provisions of the Development Act, the Government has no power to raise any construction unless the same is sanctioned under the Master Plan. Mr. Z.A. Shah, learned Senior Counsel, in this behalf referred to Sections 7 and 13 of the Jammu and Kashmir Development Act, 1970. Section 7 of the Act provides for civil survey and preparation of Master Plan. It reads as under: "7. Civil Survey of, and master plan for the area: (1) An Authority shall, as soon as may be, carry out a civic survey of and prepare a master plan for the Local Area for which it is constituted. (2) The master plan shall. (a) define the various zones into which the Local Area may be divided for the purpose of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and (b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones of the Local Area may be prepared. (3) The master plan may provide for any other matter which is necessary for the proper development of the Local Area." Sub-Section 2(b) clearly states that the Master Plan shall serve as a basic pattern of frame-work within which the zonal development plans of the various zones of the Local Area may be prepared. (3) The master plan may provide for any other matter which is necessary for the proper development of the Local Area." Sub-Section 2(b) clearly states that the Master Plan shall serve as a basic pattern of frame-work within which the zonal development plans of the various zones of the Local Area may be prepared. Section 13 provides that after a notice approving the date of operation of the Plan is published under Section 11, no person including the department of Government shall undertake or carry out development of any land or building in the zone unless permission for such development has been obtained in writing from the Authority in accordance with the provisions of the Act. Though an ancillary question arises whether construction of a bridge over river Jhelum would tantamount to development of land within the definition clause 2(d), yet it is the case of the respondents that construction of the bridge was mentioned in the Master Plan 1971-91 and the Project has been continuing since 1981 pursuant to Government order dated 13.10.1981, which included provision of 4-lane circular south-north connecting road. In that view of the matter, it cannot be said that the Bridge has not been mentioned in the Master Plan or that it, in any way, contravenes any of the provisions of the Master Plan. 11. It is also the case of the respondents that 30% of the work on the Bridge in question has already been completed at a whooping cost of Rs. 991 lacs. On that ground also this petition cannot be entertained after lapse of time. When a project is undertaken and crores of public money is spent, the petitioners in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. The pleas about the viability of the bridge or its location, its technical aspects cannot be allowed to be raised by those who, admittedly, have no know how about the engineering aspect of the matter. All these aspects are based on the opinion of the expert bodies and this Court cannot sit in appeal over such decisions/opinions of the Expert Bodies. All these aspects are based on the opinion of the expert bodies and this Court cannot sit in appeal over such decisions/opinions of the Expert Bodies. In Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 , the Supreme Court in paragraph 48 has observed that when such projects are undertaken and hundreds of crores of public money is spent, any individual or organizations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project. 12. The plea as to the security of the children of Presentation Convent School has to be taken with a pinch of salt. Already there are two 4-lane roads running on two sides of the School constructed only in pursuance of the instant Project. These roads are used both by public and private transport. Therefore, there seems to be no justification in saying that the Bridge in question would jeopardize the security of the students of the School. 13. The pleas of harm to ecology and environment, too, are figments of imagination. On the contrary, the petitioners want that part of the heritage Emporium Garden should be converted into road by constructing a bridge parallel to Abdullah Bridge that would eventually fall in the said Garden. That being the intention of the petitioners, they cannot be heard on raising issues on ecology and environment. In any case, these are the issues to be dealt with and gone into by the concerned authorities who, we are sure, would have gone in all these aspects. In light of the above, we do not find any ground to entertain this petition. It is dismissed alongwith the connected CMPs with costs of Rs. 50,000.00 to be equally borne by the petitioners and paid within one month from today. The costs on realization shall be deposited in the Legal Aid Fund of the High Court. In case the costs are not deposited within the period allowed, the same shall be realized from them as arrears of land revenue. 50,000.00 to be equally borne by the petitioners and paid within one month from today. The costs on realization shall be deposited in the Legal Aid Fund of the High Court. In case the costs are not deposited within the period allowed, the same shall be realized from them as arrears of land revenue. CMP No. 1372/2013: The letter which has been treated as CMP actually pertains to illegal constructions being raised near Zero Bridge and, therefore, pertains to OWP (PIL) No. 05/2013 Mujeeb Andrabi v. State of J&K & ors, not this petition. Registry is directed to detach the said CMP from this file and place it on record of the concerned PIL.