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2017 DIGILAW 272 (JK)

Harvinder Kour v. State

2017-06-05

ALOK ARADHE

body2017
JUDGMENT : Alok Aradhe, J. 1. With the consent of learned counsel for the parties, the matter is heard finally. In this writ petition, the petitioners inter alia seek quashment of the decision, if any, taken by the respondents for installation of electric towers from Amargarh-Samba to Akhnoor-Rajouri for laying down of 400 KV transmission line or passing the electric conductors over the land belonging to the petitioners. The petitioners also seek quashment of the Project/Survey Report regarding 400 KV transmission line insofar as it allegedly passes over the land of the petitioners as well as writ of prohibition restraining the respondents not to lay down transmission line by installation of electric towers on the property of the petitioners. In order to appreciate the petitioners' grievance, few facts need mention, which are stated infra. 2. The petitioners are owners of the land bearing Khasra No. 326 min, Khata No. 89/52 min Khewet No. 12/12, situate at village Gazipur Kullian, Tehsil R.S. Pura, District Jammu. The aforesaid land was purchased by the petitioner No. 1 from one Baldev Singh by a sale deed dated 25.04.2008, which was registered on 26.04.2008. It is case of the petitioners that petitioner No. 1 has constructed a double storied house on the land, which was purchased by him. An adjoining piece of land was also purchased by the petitioners. One sale deed was executed in respect of the two kanals of land in favour of the petitioner No. 2 and after execution of sale deed in respect of 1 kanal and 16 marlas forming part of Khasra No. 327 min, Khata No. 91 Khewet No. 12, situate at village, Gazipur Kullian, Tehsil R.S. Pura, the petitioner No. 2 constructed a cow shed on the land admeasuring 12 x 30 ft. and has opened a dairy farm. It is the case of the petitioners that adjoining land, that is, Khasra No. 328 belongs to one Harvinder Singh, who is a property dealer and is an influential person. 3. It is averred in the writ petition that the petitioner No. 2 received a call from Patwari on 04.01.2016 at about 9 AM, who asked him to come on the land. 3. It is averred in the writ petition that the petitioner No. 2 received a call from Patwari on 04.01.2016 at about 9 AM, who asked him to come on the land. On enquiry being made by the petitioner, he learnt that his presence was required on spot as his land was earmarked for installation of electric tower for laying down 400 KV transmission line, which is routed from Punjab to Jammu and Kashmir. A meeting was stated to have been held in the office of S.D.M. R.S. Pura on 04.01.2016 and all the persons, whose land was being used for installation of towers, were called to discuss their grievance. However, petitioner No. 2 in the meeting conveyed to the Deputy Commissioner, Jammu that he is not agreeable to the acquisition of the land as he would be deprived of his source of livelihood. On that very day, the Deputy Commissioner, Jammu asked respondent No. 7 steam to inspect on spot and ascertain the factual position and earmark the land for installation of the electric tower. It is also stated in the writ petition that the aforesaid Harvinder Singh came on spot and abused petitioner No. 2. 4. It is the case of the petitioners that the aforesaid Harvinder Singh by manipulating the survey report with the concerned Patwari, claimed to have projected that the land of the petitioner No. 2 was earmarked for installation of electric tower. The petitioner No. 2 also approached the General Manager of respondent No. 7, by which he sought for survey report of the land for installation of the electric tower. However, the survey report was not supplied to the petitioner. It is the case of the petitioners that their land does not form alignment of the transmission line and the tower is to be installed on the land bearing Khasra No. 328, adjoining the land of the petitioners. The petitioner No. 2 approached this Court by filing OWP No. 30/2016, which was disposed of vide order dated 28.01.2016 with a direction that in case the respondents intend to install electric tower on the land owned and possessed by the petitioners, the same shall be done after a period of seven days after supply of copy of the order to the petitioners. 5. 5. The petitioner No.2 before filing the writ petition also approached the Power Grid Corporation of India on 08.01.2016 and had sought the information inter alia with regard to the survey in respect of project in question, details of Khasra numbers along with names of owners in village Gazipur Kullian and details of project report carried out by the Power Grid for installation of towers so far as it pertains to the village, Gazipur Kullian as well as GPS information with regard to the land situate at village, Gazipur Kullian. In respect of the aforesaid information, the petitioner was informed that village, Gazipur Kullian does not falls within the jurisdiction of Power Grid Corporation of India. The petitioner No. 2 also approached respondent No. 6 and asked the same information. Thereafter, the petitioner also approached the Under Secretary to the Government Power, Development Department, Civil Secretariat, Jammu seeking information vide annexure 'K'. However, the information as sought for by the petitioners was not supplied to the petitioners. In the aforesaid factual background, the petitioners have approached this Court seeking relief as stated supra. 6. Learned senior counsel for the petitioners, while inviting attention of this Court to pages 46 and 53 of the reply filed on behalf of the respondents 6 & 7, submitted that there has been change in the alignment. It is also submitted that the petitioners have fundamental right to hold the property and the respondents cannot be deprived the petitioners of their right to hold property without taking recourse to the law. It is also submitted that in the instant case, no information as sought for by the petitioners was supplied to them and the approach of the respondents is unfair, which deprives the petitioners of their fundamental right. It is also submitted that in the notice published under section 4(1) of the State Land Acquisition, Act, Svt. 1990 name of one Duni Chand as owner has been mentioned, who has no concern with the land in question. It is further submitted that in case the transmission line passes through the land of the petitioners, the same shall have adverse impact on the health of the petitioners. It is submitted that neither Gazipur nor Gazipur Kullian is mentioned in the alignment. In support of his submissions, learned senior counsel has referred to the decisions of the Supreme Court in the cases, Olgo Tellis & Ors. It is submitted that neither Gazipur nor Gazipur Kullian is mentioned in the alignment. In support of his submissions, learned senior counsel has referred to the decisions of the Supreme Court in the cases, Olgo Tellis & Ors. v. Bombay Municipal Corporation & Ors., AIR 1986 SC 180 , Chameli Singh & Ors. v. State of U.P. & Anr., 1996 2 SCC 549 , Dr. Ashok v. Union of India & Ors., AIR 1997 SC 2298 and 2016 (4) JKJ 507 [HC], National Highway 1-A & Ors. State of J & K & Ors. 2017 (2) JKLT 453. 7. On the other hand, learned Deputy Advocate General has submitted that action for laying down transmission line shall be taken in accordance with law and no allegation has been made against the officers of the State Government. Learned counsel for respondents 6 & 7 has submitted that alignment has been ascertained on the basis of longitude and latitude of a place and respondents 6 & 7 are only the implementing agencies and have neither any right to alter the alignment nor to deviate from the same. It is further submitted that there has been no change in the alignment. The contention of the petitioners that their neighbor Harvinder Singh is favoured, is incorrect, as 12 marlas of land of aforesaid Harvinder Singh is being acquired, whereas only 5 marlas of the land belongings to the petitioners is being acquired. It is further submitted that out of the total land admeasuring 36,000/- sqr. ft., only 1350/- sqr. ft. land of the petitioners is being acquired. It is further submitted that the petitioners have not challenged the notification issued under section 4 of the Jammu and Kashmir State Land Acquisition Act, and challenge can be only be made in respect of actionable nuisances. At this point of time, no health hazards are ascertainable as the line is yet to be laid. 8. It is also submitted that in the project in question total 1142 towers have to be installed out of which foundation in respect of 1065 towers have already been laid down and the transmission line up to Samba has been charged. At this point of time, no health hazards are ascertainable as the line is yet to be laid. 8. It is also submitted that in the project in question total 1142 towers have to be installed out of which foundation in respect of 1065 towers have already been laid down and the transmission line up to Samba has been charged. In R.S. Pura, out of 29 towers, in respect of 26 foundation has been laid and work in respect of only three towers is required to be undertaken and out of the three, one tower has to be installed on the petitioners' land. It is further submitted that individual interest of the petitioners has to give way to the public interest. It is further submitted that the petitioners can raise all objections in the proceedings under section 5(A) of the Land Acquisition Act. Lastly, it is urged that the petitioners have raised disputed questions of facts, which cannot be adjudicated in a writ petition. In support of his submission, learned counsel for respondents 6 & 7 has placed reliance on the decision of the Supreme Court in the case of The Power Grid Corporation of India limited v. Century Textiles and Industries, Civil Appeal No. 10951 of 2016, Division Bench case of this Court 2017 (1) JKJ 188 [HC], Zahoor Ahmed Shah Watali & Ors. v. State of J & K & Ors., LPAOW No. 240/2015 and in the case of Dwarko & Ors. v. State of J & K & Ors., 1990 JKLR 247 . 9. By way of rejoinder reply, learned senior counsel for the petitioners submitted that today for the first time during the course of submissions the petitioners have learnt that notifications under sections 4 and 6 of the Jammu and Kashmir Land Acquisition Act have been issued. It is further submission that the original alignment report has not been supplied to the petitioners and the petitioners have fundamental right to hold the property. 10. I have considered the submissions made by the learned counsel for the parties and have perused the record. It is well settled in law that power of judicial review is not directed against the decision but the decision making process. It is equally well settled legal position that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is well settled in law that power of judicial review is not directed against the decision but the decision making process. It is equally well settled legal position that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. See Harpal Singh Chouhan v. State of Uttar Pradesh, AIR 1993 SC 2436 , Union of India v. Rajinder Singh Kadiyan, AIR 2000 SC 2513 and Surinder Shukla v. Union of India & Ors., 2008 AIR SCW 972. The right to live with dignity is recognized fundamental right under Article 21 of the Constitution of India and is a basic human right inherent in basic human existence. The law merely recognized the inherent right and is not its source. (See UP Avas Vikas Parishad v. Friends Cooperative Housing Society Ltd., AIR 1996 SC 114 . It is also well settled in law that while exercising power under Article 226 the High Court must balance competing interest that the individual interest and the public interest. In the State of Jammu and Kashmir the right to hold property is a fundamental right and nobody can be deprived of right to hold the property except in accordance with law. It is no longer res integra that disputed questions of facts cannot be adjudicated in a proceeding under Article 226 of the Constitution of India. 11. In the backdrop of the aforesaid well settled legal position, the facts of the case in hand may be seen. The Inter-State Project of laying down the transmission line from State of Punjab to State of Jammu and Kashmir was approved by Ministry of Power Government India on 19.09.2013. The project has been conceived with a view to ensure that the Kashmir Valley does not face a similar blackout, which was faced in the year, 2012 due to heavy snow fall in Kashmir Valley. Thus, an alternative route through Akhnoor-Rajouri and Mughal Road has been approved in the 31st Standing Committee meeting of Power System Planning of North Region held on 02.01.2013 by the Central Electricity Authority. Thus, an alternative route through Akhnoor-Rajouri and Mughal Road has been approved in the 31st Standing Committee meeting of Power System Planning of North Region held on 02.01.2013 by the Central Electricity Authority. The respondents have taken a stand in the return that on the basis of original survey and GPS Coordinates as approved by the Central Electricity Authority, the land of the petitioners and the adjoining land of his neighbor forming part of Khasra No. 328 has been earmarked for installation of tower and accordingly the revenue record was prepared. It is also noteworthy that in the project in question total 1142 towers have to be installed out of which foundation in respect of 1065 towers have already been laid down and the transmission line up to Samba has been charged. In R.S. Pura, out of 29 towers, in respect of 26 foundation has been laid and work in respect of only three towers is required to be undertaken and out of the three, one tower has to be installed on the petitioners' land. Thus, from the above narrated facts, it is axiomatic that project has been conceived in public interest. 12. Nonetheless, the Court has to protect the right of the individual qua the public interest and to balance the competing claims. The issue whether in the alignment, the land of the petitioners is included or not is a disputed question of facts in view of the rival stand taken by the petitioners as well as respondents, which cannot be gone into in this proceeding at this point of time. Admittedly, in the instant case, the land of the petitioners is yet to be acquired. The information sought for by the petitioners has not been supplied to him. Accordingly, it is directed that competent authority shall furnish the information sought for by the petitioner vide communication dated 23.02.2016 contained in annexure-'K' within a period two weeks from the date of certified copy of order passed today. The petitioners are granted liberty to challenge the Notifications under sections 4 & 6 issued under the State Land Acquisition as well as to agitate the issue with regard to change of alignment in accordance with law. The petitioners are granted liberty to challenge the Notifications under sections 4 & 6 issued under the State Land Acquisition as well as to agitate the issue with regard to change of alignment in accordance with law. Needless to state that till the land of the petitioners is duly acquired in accordance with law, no work of laying of towers or electric conductors on the land of the petitioners shall be carried out. With the aforesaid directions, the writ petition is disposed.