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2015 DIGILAW 365 (JK)

Kartar Singh v. State

2015-07-28

B.L.BHAT

body2015
JUDGMENT : 1. The following reliefs are claimed in this writ petition: (i) Writ of mandamus commanding the respondents to construct the road from Senabati to Gujrara via Chunthan under NABARD. (ii) Writ of certiorari quashing the decision, if any, made or taken by any of the respondents regarding the change of alignment of the said road. (iii) Writ of prohibition restraining the respondents from constructing the Senabati to Gujrara road at OKM from Senabati itself. 2. The case set up by petitioners belonging to village Chuthan, Tehsil Banihal, District Ramban is that village Chuthan falling in Block Ramsoo/Ukhral of Tehsil Banihal is the last village in the far-flung area not connected with a motor-able road. It is averred in the petition that village Chuthan, being surrounded by hills, remains cut-off during winter season. The villagers consisting of about 100 families are said to be facing lot of difficulties. The adjoining village Halla also consists of about 100 families. It is further averred in the writ petition that in view of the geographical location of the village and lack of motorable road facility, government decided to construct a road from Senabati to Gujrara via Chuthan under NABARD-RIDF-XV. The road is said to have been already constructed upto Senabati. Distance from Senabati to Chunthan is about two kilometers whereas from Chunthan to Gujrara, the distance is five kilometers. Thus, the proposed road from Senabati to Gujrara via Chunthan would have road length of about seven kilometers. It is further averred in the petition that the residents of Chunthan and Halla mainly depend on agriculture and rearing of cattle. In summer, the villagers shift their residence to pastures in hills abutting the famous Chamunda Mata Sharwa Dhar Hill lying across the river flowing alongside village Chunthan. Since the villagers have to cross the river, it was decided to construct a bridge and road from Senabati to Gujrara via Chunthan. It is further averred in the petition that apart from the above, village Chunthan was brought under the State Tourism Policy to attract tourists for which a motorable road was essential. Besides annual pilgrimage of Chamunda Mata from May to October passes through the village Chunthan and the successive governments had decided to provide road connectivity for the benefits of the yatris. Besides annual pilgrimage of Chamunda Mata from May to October passes through the village Chunthan and the successive governments had decided to provide road connectivity for the benefits of the yatris. It is further averred in the petition that the survey conducted for construction of the proposed Senabati to Gujrara road via Chunthan was approved by the respondent No. 1. Even foundation stone was laid for construction of the afore-said road, for which tenders were invited for two portions in kilometer first. It is averred that the work was allotted to contractors and the aforesaid two portions were completed. However, black topping has not been done. It is further averred that respondent No. 4 had issued NIT dated 09.01.2010 in respect of two more portions of the road. The work was allotted to contractors and the same has been executed. However, black topping has not been done so far. Respondent No. 4 is said to have issued NITs in respect of second, third and fourth kilometers for which work was allotted to contractors and the same stands executed. However, black topping has not been done. It is further averred that the respondents have decided not to complete the road as one-Omkar Singh had raised some objection which was used as an excuse for not constructing the road as per the approved survey. Subsequently, the aforesaid Omkar Singh gave his consent for construction of road through his land. However, respondents 4 and 5 have decided to stop the work beyond RD 500 second kilometer and instead decided to construct the Senabati-Gujrara road from RD 0 first kilometer i.e. from Senabati itself and not via Chunthan. It is alleged that the change of alignment has been effected contrary to the approval granted by respondent No. 1 and respondents could not be permitted to change the alignment in mid-way and abandon construction of Senabati-Gujrara road via Chunthan. 3. Respondents No. 1 to 3 have filed objections admitting that a Project Report was prepared for construction of road from Senabati to Gujrara via Chunthan. Various options were considered and finally the best feasible option was selected. It was decided to connect village Chunthan with Ukhral Senabati road KM 12th RD 50 which works out to 1.60 kms from Chunthan village. Various options were considered and finally the best feasible option was selected. It was decided to connect village Chunthan with Ukhral Senabati road KM 12th RD 50 which works out to 1.60 kms from Chunthan village. The other option was to connect Gujrara area by laying the road through built-up area as well as prime agricultural land of lower Chunthan but that would result in involvement of whole agricultural land of lower Chunthan village. Thus, it was decided to connect Gujrara village with main Ukhral Senabati road. The alternate alignment was technically feasible as there is saving of 0.5 kms road length, better bridge site location, besides, avoiding of prime agricultural land of lower Chunthan. It is further pleaded that the socio-economic conditions of the inhabitants would not warrant utilization of the prime agricultural land for road construction, more so, when the same was being undertaken under NABARD. It is pleaded that the road alignment from Senabati to Gujrara connects the village Chunthan as well as Gujrara, thus satisfying the demand of the local people in respect of road connectivity. This alignment is said to be the most feasible alignment in view of the topography of the area. Respondent No. 4 has filed objections pleading that the finally selected alignment was technically feasible as there is saving of 0.5 km road length, better bridge site location and this alignment avoids the prime agricultural land of the lower Chunthan area. Respondents 6 and 7 have filed objections reiterating the pleas taken by the official respondents. It is further pleaded that the petitioners are residents of Chunthan and have been connected by road from Senabati to Chunthan. It is further pleaded that the change in road alignment based on viability and public interest cannot be questioned by petitioners who have already got road connectivity. 4. Heard learned counsel for the parties and perused the record. It is contended on behalf of the petitioners that there is deviation from the approved Survey and the change of alignment will result in giving a set back to the socio-economic activity by depriving the residents of Chunthan of benefits of bridge connectivity across the river and divert the route of the yatra resulting in economic deprivation of residents of Chunthan. Per contra, it is submitted by learned counsel for respondents that since the proposed road was to pass through difficult terrain in a hilly area, the change of alignment was necessitated in the better interest of safety of yatris, avoiding of prime agricultural land and providing of connectivity to Gujrara as also to Chunthan without compromising with the safety of road users. It is submitted that the site for construction of bridge was changed to avoid the landslide area and technical feasibility in this regard could not be questioned by the petitioners. 5. It is the admitted case of the parties that to provide road connectivity to the hithertobefore neglected remote hilly areas of Gujrara and Chunthan villages, a survey was conducted for construction of road from Senabati to Gujrara via Chunthan. During the course of recce of the said road, respondents decided to go for various options. This appears to have been done keeping in view the topography of the area and the limited agricultural land available in village Chunthan which serves as the economic lifeline of the local residents. On weighing various options, it was decided to connect Gujrara village with main Ukhral Senabati road as the alternate alignment was technically feasible inasmuch as there was saving of 0.5 kms road length, better bridge site location and avoiding of the prime agricultural land of lower Chunthan. It is not disputed that the proposed road in terms of basic survey report was to originate from Senabati, pass through village Chunthan and terminate at Gujrara. However, in view of the difficult terrain and landslide area, respondents had to look for a better option keeping in view the safety of commuters and other road users, besides preserving the prime agricultural land which is a precious possession in land-locked hilly areas. The change in alignment, in view of the topography of the area, is pleaded to be the most feasible alignment. Official respondents claim to have considered the public representations and resolutions passed by the public of the area which did not favour construction of road involving the prime agricultural- land. The technical feasibility as emanating from the project report favoured change in alignment though, according to learned counsel for respondents No. 6 and 7 construction of road and motorable bridge from Senabati to Gujrara would not amount to change in alignment as it is a different route altogether tendered separately. The technical feasibility as emanating from the project report favoured change in alignment though, according to learned counsel for respondents No. 6 and 7 construction of road and motorable bridge from Senabati to Gujrara would not amount to change in alignment as it is a different route altogether tendered separately. Be that as it may, petitioners have no cause to feel aggrieved as village Chunthan stands connected with Senabati by the road in accord with the approved survey. The various considerations weighing with the official respondents while executing projects under NABARD concept manifested in laying of a bridge on the river providing connectivity to village Gujrara without having to adopt the route through Chunthan. There is no cause for the petitioners to be aggrieved. Had Gujrara been connected with Senabati through the altered route without providing connectivity between Chunthan and Senabati, petitioners would have been within their rights to seek redressal of their grievances. Once road connectivity have been provided to Chunthan, they should have no grouse. If construction of road to Gujrara via Chunthan is not technically feasible and economically viable, petitioners cannot compel the official respondents to adhere to the original survey. Safety of the commuters and road users besides compulsory acquisition of land in areas where agricultural land is scarce are considerations which must necessarily weigh with the official respondents while executing projects. Insisting upon construction of road through scarcely available cultivable land in rain-fed hilly areas would result in deprivation of the local populace largely dependent upon agriculture and cattle rearing rather than boost economic activity in the area. Likewise, construction of bridge at a spot with landslide hills looming large over it would be compromising with the safety and security of road users. Public interest would not warrant adhering to survey which overlooks considerations relating to safety of road users and economic health of the local community. The project report has been prepared by the engineering experts and technical feasibility assessed by them cannot be subject of controversy, moreso as the petitioners have got the road connectivity with Senabati providing no occasion for raising such controversy or being aggrieved of the same. 6. There is no merit in the petition. The same is dismissed alongwith connected MPs. Interim directions also stand vacated. 7. Record be returned.