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2014 DIGILAW 120 (JK)

Balbir Singh v. Union of India

2014-03-19

TASHI RABSTAN

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JUDGMENT Tashi Rabstan, J.- 1. By the medium of this petition, the petitioners are seeking quashment of Communications No. 87008/01/E8 dated 09.07.2009; No. 5602-04 dated 11.12.2010 and No. 8245/08/138/E8 dated 07.01.2011, on the grounds taken in the writ petition. The facts, as averred in the writ petition, are that the petitioners are residents of Villages Kothi and Mehtabpur, District Kathua. They are landless labourers belonging to weaker section of the Society and earn their livelihood by working as Masons, Carpenters and other related works on daily basis. It is contended that petitioner No. 1 has his house under Khasra No. 87 at Village Kothi and other petitioners have their respective houses under Khasra Nos. 13, 21, 23 and 24 at Village Mehtabpur. It is contended that the official respondents without acquiring the land under the provisions as admissible to the field and without following due procedure have awarded the contract in favour of respondent No. 10 vide impugned communication dated 09.07.2009 for widening and construction of metalled road over the land situate at Villages Kothi and Mehtabpur, which leads to Ammunition Depot located at Village Kharote, leaving aside the alternate Dilwan-Hadel link road. The contention of the petitioners is that the Dilwan-Hadel link road is not inhabited, therefore, if the same is renovated or constructed according to the army specifications, it would not result in displacement or causing injury to the rights of anybody. The further contention of the petitioners is that if the proposed road is allowed to be constructed/widened as per the army specifications, the same would result in irreparable loss to them as regards the properties owned by them. In order to redress their grievances, as averred in the writ petition, they approached the official respondents, local MLA and MP concerned and submitted representations, but all in vain. 2. Objections have been filed on behalf of respondents. In the objections filed on behalf of Union of India, it has been stated that the army authorities are executing the work over the land duly acquired by them after the residents of Villages Kothi had given their consent in writing for construction of road from Village Mehtabpur onward, as upto Village Mehtabpur there is already an existing pacca road constructed by the State Government. It has been stated that they are not doing anything which may cause damage to the houses existing on both sides of the said road. It has been stated that they are not doing anything which may cause damage to the houses existing on both sides of the said road. Further it has been stated that no work is being carried out by respondent No. 10 over the land owned by the petitioners. It has been stated that vide communication dated 07.01.2011 the contractor was directed to repair the perimeter road under construction within the acquired defence land, which had been damage because of heavy monsoon rain. It has been specifically denied by the army authorities that neither the land owned by the petitioners has been acquired nor used for the purposes of construction/widening of road. 3. For better appreciation of the controversy raised in this petition, it would be appropriate to reproduce paragraph 23 of the reply filed by respondent No. 9 hereunder: "That the averments of para. No. 23 are self explanatory, hence no comments. However, it is submitted that during the spot visit by respondent No. 9 to village Kothi along with the revenue officers, officials and army authorities, a patient hearing was given to the public/inhabitants of village Kothi, Barohi, Mehtabpur and Dilwan Tehsil and Distt. Kathua and after hearing them, subsequent directions to the Army authorities were issued on spot to conduct joint recce with revenue field staff for the alternate land identified earlier for the construction of approach link road to A.P. Kharote via village Aidel in order to resolve the issue of approach road to A.P. Kharote. Subsequently, Tehsildar Katjiua has submitted his report and on the receipt of the report, Tehsildar Kathua was directed vide No. DCK/LHS/2010-11/480-85 dated 22.02.2011 for the preparation of revenue papers in respect of said indentified alternate approach road for the purpose on the identification of army via village Aidel Tehsil and District Kathua. Moreover, the inhabitants of village Dhol Tehsil and District Kathua have also filed their willingness for acquisition of their land by the army for construction of approach road to Ammunition Depot Kharote. As such, there is no question of causing disturbance and dispossession of the petitioners from their lands as well as houses. The petitioners have not correctly stated facts in the writ petition. The writ petition is premature and liable to be dismissed." 4. Respondents 11 to 15 are residents of Village Mehtabpur. Respondents No. 11 is Numberdar and respondent No. 12 is Sarpanch of said village. Mr. The petitioners have not correctly stated facts in the writ petition. The writ petition is premature and liable to be dismissed." 4. Respondents 11 to 15 are residents of Village Mehtabpur. Respondents No. 11 is Numberdar and respondent No. 12 is Sarpanch of said village. Mr. Shukla, learned counsel appearing on their behalf has vehemently argued that the writ petition has been filed in representative capacity but without seeking prior permission in terms of Order 1 Rule 8. It is contended that though the petitioners are 14 in number, but actually they belong to six families and the writ petition has been filed with an oblique motive and mala fides intention to subserve their personal interest and not in the interest of inhabitants of Villages Kothi and Mehtabpur. Further it is contended that from Kothi Talab to Badoi there is a kacha road of about 20-25 feet width which connects Kothi Mehtabpur with Village Badoi, where the Ammunition Depot is constructed by the army authorities. It is contended that the dust emanates from the road due to playing of heavy vehicles by the army and it enters into the houses of respondents 11 to 15 and other villagers of Kothi-Mehtabpur, thus are creating health hazard problems and a constant source of nuisance, whereas the houses of petitioners situate in the Mohalla, where there is a pacca road and they are not affected by such nuisance. The villagers of Kothi-Mehtabpur have been demanding black topping of said kacha road. Learned counsel has further stated that before the construction of road-in-question could be taken up by respondent No. 10, the petitioners have approached the Court and stalled the whole process. 5. Heard learned counsel for the parties at length and perused the pleadings set forth by the respective parties along with the Annexure appended thereto. 6. The grievance put forth by the petitioners in a nutshell is that the official respondents are widening/constructing the road from Village Kothi Mehtabpur without acquiring the land by adopting due course of law. 7. Admittedly, the army authorities are constructing metalled road from Village Kothi-Mehtabpur onwards. It is specific stand of Army Authorities that they are constructing the road on the land already acquired by them and none of the houses of the petitioners is coming in alignment of widening and metalling process of already existing kacha road. 8. 7. Admittedly, the army authorities are constructing metalled road from Village Kothi-Mehtabpur onwards. It is specific stand of Army Authorities that they are constructing the road on the land already acquired by them and none of the houses of the petitioners is coming in alignment of widening and metalling process of already existing kacha road. 8. It has been revealed from the pleadings of the parties that a detailed report was prepared by Naib Tehsildar, Circle I & II, Kathua, in which it has been clearly indicated that the houses of petitioners are not situated alongside the existing kacha road from Village Mehtabpur to Badoi. It has also been revealed that panchayat halqa Mehtabpur and villagers of Village Kothi-Mehtabpur and villagers of Village Kothi-Mehtabpur have passed separate resolutions for taking necessary steps to ensure that the proposed road from Kothi-Mehtabpur to Ammunition Deport Badoi is constructed at the earliest. Thus, the petitioners have no locus-standi to question the communication dated 09.07.2009, whereby tender was allotted to respondent No. 10 for construction of road-in-question, because neither they participated in the tendering process nor they seem to be the affected persons as per the report submitted by the revenue officials. I have failed to understand that how the petitioners are affected with the construction/widening of the road-in-question, particularly when the Roads are the lifeline of a country and are basic infrastructure for economic, industrial, commercial, social and cultural development of a state. The petitioners, thus, have no right to question the construction/widening of the road in question. 9. The petitioners, in any event, have no right to dictate the Army authorities to use another alternate Dilwan-Hadellink road to reach Ammunition Depot (sic) Kharote, particularly when the road-in-question would serve the living standard (sic) the villagers of Villages Kothi-Mehtabpur as they would have easy access to (sic) nearby areas. In view of the materials available on record, in the considered opinion of this court, the writ petitioners have failed to make out a case. Therefore, this writ petition is liable to be dismissed. Accordingly, the same is dismissed along with connected CMA(s), if any. Respondents are at liberty to go ahead with the process of construction of road. Interim direction shall stand vacated.