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2019 DIGILAW 386 (JK)

Omesh Singh v. State of J&K

2019-08-17

RASHID ALI DAR

body2019
JUDGMENT : Rashid Ali Dar, J. 1. Through the medium of instant petition, petitioners have prayed for the following reliefs:- Certiorari: i. Quashing the Notification issued under Section 4(1) of the Land Acquisition Act dated 23rd of December, 2016 and all orders passed in pursuance thereof. Mandamus: i. Not to pass issue and declaration or pass any final award and already issued not to act upon the same till the outcome of the ' writ petition. ii. Directing the respondents to produce the entire records pertaining to the decision for construction of Hewagan Dhanmasta Road from the initial stage, the decisions taken and the procedure adopted for arriving at the decision including survey and the certificate of fitness of the hilly terrain for purposes of construction of the road along with. iii. Directing the respondents to produce the detailed records of the acquisition proceedings undertaken before the issuance of the section 4(1) Notification dated 23.12.2016. iv. Directing the respondents not to consider the issue as in public interest merely because the petitioners are lesser in number, but have the same rights as any other citizen who is entitled to a right to life, liberty and dignity whether living in a village, town or a city. Prohibition: i. Prohibiting the respondents from constructing the road through the lands of the petitioners or taking any decision ignoring the interest of the petitioners or without giving any further opportunity of being heard. ii. Writ of prohibition restraining the respondents from constructing the road through agricultural land in violation of the standing orders and circulars issued by the Government from time to time. 2. The petitioners, who are ten in number, have challenged the Notification dated 23rd of December, 2016 issued under Section 4(1) of the Land Acquisition Act by respondent No. 3 whereby the land/property has been proposed to be acquired for the construction of Hewagan-Dhanmasta road under PMGSY scheme. The facts projected in the petition, in brief, are: (1) The petitioners who are residents of Revenue Village Dhanmasta Tehsil Pogal Paristan (Ukhral) District, Ramban, are dependent upon the small land holdings which they possess. The facts projected in the petition, in brief, are: (1) The petitioners who are residents of Revenue Village Dhanmasta Tehsil Pogal Paristan (Ukhral) District, Ramban, are dependent upon the small land holdings which they possess. (2) The respondent No. 3 issued notification u/s. 4(1) of the Land Acquisition Act under No. Acq./PMGSY/16/525-34, dated 23.12.2016 notifying therein that the land mentioned therein is required for public purpose, namely, for construction of Hewagan Dhanmasta first 3.00 km under PMGSY at village Dhanmasta Tehsil Pogal Paristan District. (3) The petitioner No. 1 got the knowledge of the issuance of the aforesaid Notification dated 23rd of December, 2016 through passersby and immediately efforts were made to find out whether any such Notification had been issued. In pursuance of the application filed under Right to Information Act, the Notification which was published in the newspaper was provided. (4) Hewagan-Dhanmasta road was sanctioned under package No. JK04-101. Since the construction of road from Hewagan to Dhanmasta was causing damage to the property and residents of the area, the Collector Land Acquisition recommended the high level team to be constituted to explore the possibility of alternate take off point of the road. The respondents brought the issue to the knowledge of the concerned authorities, who instead of permitting the alternate take off point permitted the respondents to change the alignment. An application under Right to Information Act was filed on 4th of December, 2013 seeking certain information from Public Information Officer, office of Executive Engineer PMGSY, Division Banihal, District Ramban and in reply thereto, the respondents furnished the information that the proposal of the road was under process. It has further been pleaded that the primary object of PMGSY was providing the road connectivity which is only key component of Rural Development for promoting the access to economic and social services. The idea of rural connectivity is that it must increase the income and lead to productive employment opportunities for ensuring sustainable poverty reduction. The Government was trying to deprive the petitioners from their agricultural and residential land. (5) The non-consideration of the objections filed by the petitioners to the acquisition proceedings and the problems likely to be faced by them had given the cause to the petitioners to file the instant petition. The Government was trying to deprive the petitioners from their agricultural and residential land. (5) The non-consideration of the objections filed by the petitioners to the acquisition proceedings and the problems likely to be faced by them had given the cause to the petitioners to file the instant petition. (6) The road from Hewagan to Dhanmasta has already been constructed upto almost 1 Km on the original sanction incurring an expenditure of more than Rs. 60 lakh. The manner of undertaking the construction work in hilly terrain reflects the non-application of mind on the part of the respondents and misuse of public money which has benefited only the respondents and the contractors. Not only this, the persons to be affected should also have been associated with the decision making process in the democratic setup. The authorities must not be in a haste to take any decision, bet it with regard to construction of a building, road or developing any area. With regard to the roads, day in and day out one hears of accidents taking place in the hilly terrain. In the excitement and enthusiasm, the so called experts in construction of government roads and buildings and decision making process fail to consider/understand the finer details and reprecaution it may lead in case the works are not started after taking all aspects into consideration. The result of execution of the work during the Maharaja's time and the engineers and other officers engaged in the construction of the roads then shows due applications of mind by the then authorities as compared to the authorities at the helm of affairs in the present times. The outlay of the buildings and construction thereof and sites chosen as also the roads constructed appear to ensure that it becomes a regular source of income to those forming a nexus for extraneous considerations. (7) Along with the documents received under RTI Act vide letter No. ACQ/PMGSY/17/539-40, dated 30.08.2017 is a letter annexed therewith is the letter dated 18th of October, 2016 regarding approval of the competent authority to change the alignment of road work, namely, L059 Hewagan-Dhanmasta in Ramsoo Block sanctioned under PMGSY in the year 2006-07. (7) Along with the documents received under RTI Act vide letter No. ACQ/PMGSY/17/539-40, dated 30.08.2017 is a letter annexed therewith is the letter dated 18th of October, 2016 regarding approval of the competent authority to change the alignment of road work, namely, L059 Hewagan-Dhanmasta in Ramsoo Block sanctioned under PMGSY in the year 2006-07. The respondents in past also changed the alignment, whether any sanction was granted by the competent authority for change of alignment at that stage or the respondents changed the alignment on their own is required to be confirmed from the respondents. (8) The issuance of notification under Section 4(1) of the Land Acquisition Act was malafide. The intention of the respondents was a change in takeoff point; the appropriate authority permitted only change of event. Notification u/s. 4(1) would reflect that the areas which have been sought to be acquired do not fall anywhere between Hewagan and Dhanmasta inasmuch as it would require a new takeoff point and has not been authorized by the competent authority. The intention of the authorities to start a new takeoff point for construction of Hewagan Dhanmasta road with a new takeoff point is evidence and reflected in letter dated 22.08.2017 issued by the Executive Engineer, PMGSY Banihal. (9) Some vested interested persons and influential persons belonging to village Dhanmasta are keen to get the road constructed till their houses. The construction of the road, therefore, to say is for a public purpose is not true, but only to benefit the influential persons of Village Dhanmasta. To the knowledge of the petitioners, beyond their homes, respondents are not being permitted to construct the road. The pick and choose method adopted by the respondents and the persons with vested interests shows that they are hell bent upon dispossessing the petitioners of their land and uprooting them from the settled positions and habitation. (10) The petitioners had earlier filed a writ petition being OWP No. 844/2014, titled Omesh Singh and others v. State of J&K and others challenging the action of the respondents for constructing the road, which was without any authorization. This Court vide order dated 12.06.2014 directed the respondents not to interfere in the peaceful possession of the petitioners without following due course of law and remove all the machinery brought on the said land with the purpose of construction of the road. This Court vide order dated 12.06.2014 directed the respondents not to interfere in the peaceful possession of the petitioners without following due course of law and remove all the machinery brought on the said land with the purpose of construction of the road. (11) Pursuant to the issuance of notification under Section 4(1) of the Land Acquisition Act, the respondents have proceeded to continue the proceedings under Sections 6, 7 and 17 and notice under Section 9 and 9A of the J&K Land Acquisition Act issued by the office of Collector Land Acquisition (ACR) Ramban bearing No. 10/ACR of 2017-18, informing all interested persons that the Government of J&K intends to take possession of the land measuring 74 kanals and 19 marlas at village Dhanmasta Tehsil Pogal Paristan District Ramban for construction of Hewagan Dhanmasta Road. (12) The respondents are not transparent in their dealings and it appears that these tactics are being adopted only for coercing the petitioners to give up their rights in their properties for which no authorization has been granted to the respondents. 3. The petitioners have challenged the action of the respondents in the decision making process for construction of the road mainly on the following grounds:- (a) The decision of the respondents in commencing the construction work of the roads in the hilly areas without taking into consideration the losses likely to be occurred to the exchequer property, life and liberty is a decision which is absolutely arbitrary. (b) The construction of the road proposes to be undertaken by the respondents is going to be a cause of constant landslides causing great threat to the life and properties of the petitioners as also the passersby. The construction of the road in the area is not going to benefit the residents of the area. (c) The construction of the roads for purposes of connectivity of the villages and hamlets takes a toll on the ecology of the area as it consists of delicate flora and fauna and is rich in wildlife. The petitioners believed that the respondents have undertaken the process of land acquisition by issuance of the notification even without ascertaining by proper method and tests whether the same is suitable for construction of the road. The hills are steep and construction of the road on such steep mountains and hills is not advisable. The petitioners believed that the respondents have undertaken the process of land acquisition by issuance of the notification even without ascertaining by proper method and tests whether the same is suitable for construction of the road. The hills are steep and construction of the road on such steep mountains and hills is not advisable. Any disturbance in the life and properties of the petitioners and the existence of the wildlife, flora and fauna should be avoided at all costs. (d) The respondents having authorized only to change alignment, the decision to change the starting point itself is absolutely arbitrary and without sanction. (e) The action of the respondents to issue the notification under Section 4(1) of the Land Acquisition Act without having any authority to change the starting point amounts to harassment which act needs to be deprecated and the respondents restrained from culminating the proceedings initiated by issuance of notification u/s. 4(1) of the Land Acquisition Act and any final decision likely to be taken or to be taken in furtherance thereof leading to passing of the award. The very issuance of the notification issued under Section 4(1) and all actions taken in pursuance thereof is void ab initio. (f) That most of the petitioners are small agriculturists with their land holdings situated in this hilly terrain. In case they are deprived of their land holdings and properties, they would be left with no other alternate source of livelihood and they will be put to starvation. The alternate land holdings of the petitioners in the higher reaches cannot be accessed inasmuch as there is a lurking threat of militancy. In the past many people have lost the life to militancy related incidents. Some of the petitioners have the lands on the banks of Madhumati which cannot be used for purposes of construction of the homes as it is prone to floods. (g) Over the years, some of the petitioners have constructed pacca houses by spending their savings and no compensation even if it were to be awarded, would not be sufficient for a peaceful life and constructing the same type of houses for want of the resources. (h) The respondents have no right to change the takeoff/starting point or the alignment repeatedly. (h) The respondents have no right to change the takeoff/starting point or the alignment repeatedly. (i) The action of the respondents in permitting their agents and contractors to construct the road is not an act in public interest or for public purpose but in the interests of the handful of the persons in whose favour the contract for construction of said road has been issued. 4. This Court vide order dated 25.10.2017 issued notice and in the meanwhile, it has been directed that the acquisition proceedings commenced pursuant to the Notification under Section 4(1) dated 23.12.2016 should stay qua the land of the petitioners. 5. An application bearing IA No. 2 of 2017 was filed by as many as 34 persons who are the residents of different hamlets of revenue village Dhanmasta, seeking their impleadment as party/respondents on the count that they were/are beneficiaries of the said road. The said application was allowed vide order dated 06.08.2018 and they have been impleaded as respondents 4 to 37 in the array of respondents. 6. The respondent No. 3 (Collector Land Acquisition) has also filed the reply to the petition, pleading therein that Hewagan- Dhanmasta road was sanctioned under the package No. JK04-101. The respondent No. 3 has further pleaded that at the initial takeoff point, more than 100 number of families were likely to be affected due to the construction of said road. After change of alignment of takeoff point, there was almost no possibility that the petitioners would be affected. Keeping in view the importance of the road which was going to connect and benefit the population of more than 10,000/- souls of village Dhanmasta and several other hamlets, the change of alignment was necessitated. The land under the alignment of said road was shamlati deh and kahcharai land. In has further been pleaded that the Government has every right to acquire the land under the provisions of Land Acquisition Act for public purpose. The petitioners filed objections under Section 5-A of the Land Acquisition Act in response to the Notification under Section 4(1) of the Act vide No. Acq/PMGSY/16/525-34, dated 23.12.2016. The Tehsildar, Pogal Paristan was directed vide letter dated 15.03.2017 to inform the objectors to be present in the office of Collector Land Acquisition (ACR) on 23.03.2017. The petitioners filed objections under Section 5-A of the Land Acquisition Act in response to the Notification under Section 4(1) of the Act vide No. Acq/PMGSY/16/525-34, dated 23.12.2016. The Tehsildar, Pogal Paristan was directed vide letter dated 15.03.2017 to inform the objectors to be present in the office of Collector Land Acquisition (ACR) on 23.03.2017. After providing the opportunity to the objectors/petitioners to present their case, the detailed report was submitted by the Collector to the Government of J&K Revenue Department vide No. Acq/PMGSY/17/461-65, dated 09.08.2017 for issuance of declaration under Sections 6, 7 and 17 of the Act which was issued by respondent No. 1 vide No. Rev/LAJ/200/2017, dated 13.09.2017. The approval to change the alignment of the said road was accorded vide No. EO/PMGSY/Acctts/2146-47, dated 08.10.2016 by the Government of J&K and the Land Acquisition proceedings were initiated only after the necessary approval and proper indent was placed by the intending Department vide No. PMGSY/D/B/188-91, dated 24.06.2015. It has further been pleaded that this Court passed an order in OWP No. 844/2014, titled Omesh Singh and others v. State of J&K and others whereby it was directed that the respondents should not interfere with the land of the petitioners without following due process of law. Notifications under Section 9 and 9-A of the Act have properly been circulated through Tehsildar concerned besides published in the local newspapers. It is further pleaded in the reply that no damage would occur to the houses which were on the uphill side of the proposed road alignment about 150 mtrs. Regarding the change of alignment, it has been stated that once the Government of India has approved the change of the said road, it was not possible further to change the same. After issuing the notification under Section 4(1) of the Act, further proceedings have been continued as per the provisions of the Act only after proper hearing was provided to the petitioners under Section 5-A of the Act. 7. The residents of the area, who have been impleaded as respondents, in the impleadment application had pleaded that the revenue village Dhanmasta has been divided into three panchayat halqas, namely, Dhanmasta-A, Dhanmasta-B and Dhanmasta-C. The Panchayat halqa Dhanmasta-A is consisting of 6 Panch constituencies/wards, namely, (1) Dhanmasta, (2) Silly, (3) Batroo, (4) Dharni, (5) Oglin and (6) Dhardhanbat. 7. The residents of the area, who have been impleaded as respondents, in the impleadment application had pleaded that the revenue village Dhanmasta has been divided into three panchayat halqas, namely, Dhanmasta-A, Dhanmasta-B and Dhanmasta-C. The Panchayat halqa Dhanmasta-A is consisting of 6 Panch constituencies/wards, namely, (1) Dhanmasta, (2) Silly, (3) Batroo, (4) Dharni, (5) Oglin and (6) Dhardhanbat. The Panchayat halqa Dhanmasta-B is also consisting of 6 Panch constituencies/wards, namely, (1) Ahma, (2) Kawalin, (3) Khudmulla, (4) Tajnihal-A, (5) Tajnihal-B and (6) Tajnihal-C. The Panchayat halqa Dhanmasta-C is also consisting of following 6 Panch constituencies/wards; (1) Rounigam-A, (2) Rounigam-B, (3) Kharwan-A, (4) Kharwan-B, (5) Dhak-A and (6) Dhak-B. They have further pleaded that Panchayat halqa Dhanmasta-A except habitation/hamlet Batroo, all other Panch constituencies/hamlets have no road connectivity. Similarly, in Panchayat halqa Dhanmasta-B, the Panch constituencies Khudmullah, Tajnihal-A, Tajnihal-B and Tajnihal-C have no road connectivity. Further, in Panchayat halqa Dhanmasta-C, the Panch constituencies Rounigam-A, Rounigam-B, Kharwan-A and Kharwan-B too have no road connectivity. There was a consistent demand of the road connectivity of the inhabitants of the aforesaid 13 villages/Panch constituencies of the above named 3 Panchayat halqas. According to them, the entire area is sloppy and hilly terrain. The people of the area are backward. The Government has also identified the aforesaid areas as backward as per Reservation Act and Rules framed there under. Because of non-availability of the road facility, the children/students particularly female students could not continue their studies after getting primary/middle education from their respective hamlets. They have further pleaded that in habitation Dhanmasta, there is a middle school. In village Oglin, there is a Primary School. In habitation Dhardhanbat, there is no school at all. At Kharwan habitation, there is a High School but the said village is located at the top of the hill and thereafter, it is very difficult for the students particularly the female students to travel on foot and reach the Govt. Higher Secondary School, Ukhral which is about 10 Kms. Similarly, in village Rounigam, there is a primary school and in village Tajnihal there is a middle school. Besides this, the people have to take luggage particularly the food grains from the road side through head carriage. The distance from road side upto Rounigam and Kharwan is about 7 Kms and 8 Kms respectively. The people are poor and they cannot afford the huge head carriage charges. Besides this, the people have to take luggage particularly the food grains from the road side through head carriage. The distance from road side upto Rounigam and Kharwan is about 7 Kms and 8 Kms respectively. The people are poor and they cannot afford the huge head carriage charges. Because of this reason, they have to carry their luggage, food grains etc. themselves. It is further pleaded in the application that their demand was accepted and a road namely Hewagan-Dhanmasta road has been sanctioned in the year 2006. However, the residents of 3 villages namely Hewagan, Inyar and Sirlan raised serious objections regarding the alignment of the said road. The said 3 villages were coming down the alignment and the area is sloppy and the construction work would have damaged their residential houses and rendered them homeless. Ultimately, the Collector Land Acquisition (ACR) Ramban was instructed to sort out the issue on spot in presence of the concerned officers of PMGSY. After visiting on spot and thorough discussion, it was found that the aforesaid villages namely Hewagan, Inyar and Sirlan were actually coming down the alignment of the road and there was likelihood of causing damage to their residential houses. It was observed by the said officer that village Hewagan was consisting of 40 families and village Inyar was consisting of 58 families and located below the alignment of Hewagan-Dhanmasta road. The entire area is a hilly terrain with about 80-85 degree grade and sandy soil with heavy boulders hanging in the clay and there was every likelihood that more than 100 number of residential houses and 20 acres of land belonging to these families would get damaged. Accordingly, the plea of the residents of said 3 villages was found genuine. It was, therefore, decided that the alternate take off point was needed to be explored so that the damage that could have been caused to the residential houses and families of said 3 villages could be avoided. Thereafter, vide communication dated 30-3-2013, recommendation was made by respondent No. 3 to the Deputy Commissioner, Ramban for constituting a high level team of Engineers and officers to explore the possibility of alternate take off point of the road so that more than 100 number of families which were likely to be affected due to the construction of the existing take off point could be avoided. Thereafter, the concerned competent officers of PMGSY, Division, Batote thoroughly examined the matter and found the suitable take off point from Batroo-Lawni. Accordingly, the change in the alignment was recommended. The change of the said alignment including the takeoff point was accepted as suitable by the concerned authorities. Accordingly, the letter dated 27.10.2014 was written by Public Works Department to the Union of India, Ministry of Rural Development Department of Rural Development, Rural Connectivity Division Krishi Bhawan, New Delhi. The aforesaid Department of Government of India has granted the approval for the change of the alignment of Hewagan-Dhanmasta road, which has been conveyed to the PW (R&B), Department of J&K Government vide communication dated 26-9-2016. They have further pleaded that the petitioners 1, 2 and 8 to 10 are the residents of village Lawni-Batroo of revenue village Dhanmasta. The petitioners 3 to 7 are the residents of habitation Dharni. The distance from habitation Dharni where they are residing upto the road alignment is more than 2 Kms. Their houses are not coming in the said alignment. Similarly, the houses of the petitioners 1, 2 and 8 to 10 are also not coming in the alignment. They have further pleaded that only some piece of shamlat land which is in possession of petitioners 1, 2 and 8 to 10 is coming under the alignment of the said road. So far as the petitioners 3 to 7 are concerned, they are residing far away from the road alignment. They are claiming the land which is recorded as Maksoos Gha Charai, which comes in the road alignment. They have further pleaded that the construction of the road from habitation Khudmulla upto the destination i.e. Dhanmasta had already been constructed and the excavation work had been done. Crores of rupees have been invested in the construction of the said part of the road. Only the road from new takeoff point upto Khudmulla which is approximately 3 Kms is yet to be started. They have further pleaded that the petitioners filed the objections which was considered by the respondent No. 1 and only thereafter, the notifications under Sections 6, 7 and 17 of the Land Acquisition Act was issued. With the construction of road, 10,000 souls are going to be benefitted. 8. Heard learned counsel for the parties and perused the record. 9. They have further pleaded that the petitioners filed the objections which was considered by the respondent No. 1 and only thereafter, the notifications under Sections 6, 7 and 17 of the Land Acquisition Act was issued. With the construction of road, 10,000 souls are going to be benefitted. 8. Heard learned counsel for the parties and perused the record. 9. Some of the points which the learned counsel for the petitioners has put forth are: (i) In a welfare State, all actions of the Government and its authorities are expected to be fair; (ii) The 'public purpose' referred in Land Acquisition Act signifies providing of the amenities to the citizens or large populace. It would not include taking away the private property in the name of purported public purpose with mala fides. (iii) The right to property of the petitioners is being infringed in the instant case with impunity. It is also her submission that a road was already constructed few years back from Hewagan-Dhanmasta under package No. JK04-101. Emphasis is also laid on the argument that the notification under Section 4(1) of the Land Acquisition Act is invalid as the permission has been given only for alignment and not for construction of the road through the land of the petitioners. The action of the respondents is stated to be mala fide and so the Court has the power to lift the veil and to see what actually is intended by medium of contemplated action. Some of the communications/documents are being referred to lend, prima facie, support to the contentions raised in terms of the petition. 10. Per contra, learned counsel for the respondents has submitted that the petition has no merit. Earlier interference of this Court was sought by petitioners 1 to 4 and 6 to 8 through the medium of OWP No. 844/2014 while pleading that the respondents are constructing road under PMGSY scheme through their land without the land having been duly acquired and that the use of land is in violation of State Land Acquisition Act, the petitioners are small land holders of hilly and landslide prone area, they have fundamental right to hold their property, the respondents have started construction of the road without even finalizing the takeoff point of the said road and have started the construction work illegally. The said petition was disposed with a direction to the respondents not to interfere with the land of the petitioners, in particular, not to use the same for construction of road without following due course of law and remove all the machinery brought on the said land with the purpose of construction of the road. According to him, the decision with regard to subject matter had been taken on 30.03.2013 after the Deputy Commissioner concerned had conveyed instructions to the Collector Land Acquisition to examine the grievance of some of the inhabitants and he along with Executive Engineer, PMGSY, Banihal, AEE, AE, PMGSY and Naib Tehsildar, Ramsu and other revenue officials, visited the spot. A concise narration of grievance is made therein and it observed: "In order to save the damage to about more than 100 families of villages Hewagan and Anyar which are being affected by the construction of the Hewagan-Dhanmasta road an alternate take of point needs to be explored as alternates are available so that damage to the huge number of the residential houses/families which numbers more than one hundred and are also extremely poor families with small holdings as major chunks of their lands have already been acquired for construction of Makerkote-Ukhral road and Hewagan-Nee; PWD roads. This will not only save more than 100 families from becoming houseless but also lessons burden of about five crores on account of compensation for the structures to be damaged due to the construction of this road from the existing alignment. It is therefore, recommended that a high level team of engineers and senior officers be constituted to explore the possibility of alternate take of point of this road so that a more than 100 number of families which are likely to be damage/affected due to the construction of road from existing take of point and construction work of this road which is held up since last 03-04 years could be re-started and construction of road is completed in a time bound manner for the benefits of the people." 11. Learned counsel also made a reference of communication dated 26th September, 2016, addressed by Deputy Secretary (RC), Govt. of India, Ministry of Rural Development Department, to the Secretary/Commissioner, Public Works (R&B) Department, Civil Secretariat, Jammu, in terms of which the Ministry has accorded approval for change of alignment of road, namely, L059-Hewagan-Dhanmasta in Ramsu Block Doda. Learned counsel also made a reference of communication dated 26th September, 2016, addressed by Deputy Secretary (RC), Govt. of India, Ministry of Rural Development Department, to the Secretary/Commissioner, Public Works (R&B) Department, Civil Secretariat, Jammu, in terms of which the Ministry has accorded approval for change of alignment of road, namely, L059-Hewagan-Dhanmasta in Ramsu Block Doda. Notices were issued in State Times inviting objections from the aggrieved persons. A good number of persons including petitioners filed their objections. 12. Notification No. 417-Rev(LAJ) of 2017, dated 13.09.2017 is also referred by learned counsel for the respondents to show that compliance of the provisions of Land Acquisition Act has been made for use of land for construction of road and paying of compensation to the land owners. 13. Learned counsel for the respondents also submitted that the public interest is to be viewed while taking note of the fact that if one thousand persons are benefited by construction of road and ten petitioners are not, the balance of convenience would weigh in favour of large group of persons, who according to him, are the inhabitants of the concerned villages. The Court in terms of earlier order has impressed upon respondents not to disturb the possession of the petitioners except in due course. A matter of present nature cannot be settled in writ jurisdiction as it is the prerogative of the executive authorities to see what would be in public interest and the Court cannot substitute its opinion. He has, in this regard, placed reliance on the judgment of this Court in "Kartar Singh & Ors. v. State & Ors." 2015 (4) JKJ 657 [HC]. 14. It has been canvassed on behalf of private respondents that the plea regarding non-publication of notice has not been taken in the petition and the petitioners cannot take this ground at bar nor. Submission is also made that the petitioners have appeared before the Collector and new set of objections cannot be filed now. 15. In rebuttal, learned counsel for the petitioners submitted that the flora and fauna of the area would get effected by the construction of the road in the manner in which the respondents are intending to do so and the area too would be effected by the floods and survival would get difficult. 15. In rebuttal, learned counsel for the petitioners submitted that the flora and fauna of the area would get effected by the construction of the road in the manner in which the respondents are intending to do so and the area too would be effected by the floods and survival would get difficult. Learned counsel for the petitioners has further explained by generalizing the proposition that the people of rural area would move to urban areas in case their livelihood, which is in the form of land, is taken away. It is also her argument that the area is prone to seismic jolts and the excavation of soil for construction of the road may lead to disastrous consequences. One more plea taken by her is that no soil testing is being done for construction of road and whether alignment made is feasible to do so. 16. Considered the rival arguments. 17. The pleas as noted above taken by the petitioners point out that this Court in exercise of powers conferred on it under Section 103 of the Constitution of J&K State read with Article 226 of the Constitution of India, has been asked to have the review of the administrative action initiated by the respondent State for construction of Hewagan-Dhanmasta road under PMGSY scheme along with the action taken thereon by the Statutory Authority-respondent No. 3 under Land Acquisition Act. The grounds pleaded show the petitioners have made an endeavor to indicate the respondents having proceeded in the matter malafidely and the action contemplated to be taken is in violation of Statutory and constitutional right of the petitioners. The argument raised in terms of the petition is being expanded while putting forth element of malafides in this action by also stating that the principle of fairness stands also militated by the respondents. Expert opinion of the Committee constituted by the respondents is also found fault by stating that the genuine interests of the petitioners have not been taken note of by the Committee. 18. It is trite that the High Court in exercise of its powers under Section 103 of the Constitution of J&K State read with Article 226 of the Constitution of India is not supposed to substitute its own decision regarding a matter which falls within the domain of the executive authorities. This Court can only see whether the decision making process has been fair and reasonable. This Court can only see whether the decision making process has been fair and reasonable. It may be noted herein that it is not being pleaded by the petitioners that the power herein has been exercised by an authority who was not invested with such a power. Mala fides though pleaded, the particulars of the same have not been quoted, rather in general terms it is being stated that the action of the respondents in taking decision to construct the road Hewagan-Dhanmasta road under PMGSY scheme was made without taking into consideration the grievance of the petitioners. 19. In Balco Employees Union (Regd.) v. Union of India and others, (2002) 2 SCC 333 , the Apex Court in paragraph 92 held as under: "92. In a democracy, it is the prerogative of each elected Government to follow it's own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court." 20. This view has been reiterated by the Apex Court in JKJ Soft JKJ/32017 Parisons Agrotech Private Limited and another v. Union of India and others; (2015) 9 SCC 657 , and it has been observed that: "14. No doubt, the writ court has adequate power of judicial review in respect of such decision. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review." 21. In Bajirao T. Kote (Dead) by Lrs. and Ors. v. State of Maharashtra and Ors., (1995) 2 SCC 442 , Hon'ble Supreme Court has held: "Be that as it may, it cannot be gainsaid that providing access to the temples is not a public purpose. The exercise of the power under s. 4(1) of the Act, therefore, is neither colourable nor malafide. It is true that this court in Tata Cellular v. Union of India, 1994 (3) Scale 477 , by a bench of three Judges, considering the scope of judicial review of the administrative action (grant of license by tenders) held that the administrative actions of the State or its instrumentalities are amenable to judicial review. As mentioned earlier when the State Govt. have exercised the power under Section 4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colourable exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose unless it comes to the conclusion that it is a malafide or colourable exercise of the power. In other words the exercise of the power serve no public purpose or it serves a private purpose." 22. A Coordinate Bench of this Court in para 11 of the judgment in Shankar Dass & Ors. v. State & Ors.; 2018 (2) JKJ 511 [HC], has held: "11. The scope of interference with the proceeding initiated by the State for acquisition of the Act for a public purpose is also well defined. It has been held that if for proper development, the land is sought to be acquired, such action cannot be said to be illegal, unlawful or colourable exercise of power. The scope of interference with the proceeding initiated by the State for acquisition of the Act for a public purpose is also well defined. It has been held that if for proper development, the land is sought to be acquired, such action cannot be said to be illegal, unlawful or colourable exercise of power. The development of infrastructure is legal and a legitimate public purpose for exercising the power of eminent domain and normally, the Court will not interfere with the Government's discretion in determining the nature and purpose of acquisition except where such power is exercised mala fide or for collateral purpose or action is dehors the Act, irrational or otherwise unreasonable or purpose is actually 'no public purpose' at all and fraud on the statute is apparent. Except the aforesaid grounds, the Court will not substitute its own judgment in place of that of the Government and will interfere only when purported public use is palpably without reasonable foundation. (See: Sooraram Pratap Reddy V. District Collector, Ranga Reddy District, (2008) 9 SCC 553. While dealing with scope of Judicial Review pertaining to land acquisition matters, it has been reiterated that it is not for the Court to decide as to which particular land and to what extent it was suitable for acquisition but it is for the Government to decide. In this connection, reference may be made to the decision of the Supreme Court in the case of JKJ Soft JKJ/33853 Mohan Singh Gill and others v. State of Punjab and Other, (2015) 8 SCC 345 ." 23. It may also be relevant herein to quote para 5 and 6 of the judgment delivered by a Coordinate Bench of this Court in Kartar Singh & Ors. v. State & Ors.; 2015 (4) JKJ 657 [HC]: "5. It is the admitted case of the parties that to provide road connectivity to the hitherto before neglected remote hilly areas of Gujrara and Chunthan villages, a survey was conducted for construction of road from Senapati 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. 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 within main Ukhral Senapati 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 prima agricultural land of lower Chunthan. It is not disputed that the proposed road in terms of basic survey report was to originate from Senapati, 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 of the safety of commuters and other road users, besides preserving the prima 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 prima 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 Senapati 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 Senapati 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 Senapati through the altered route without providing connectivity between Chunthan and Senapati, 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. There is no cause for the petitioners to be aggrieved. Had Gujrara been connected with Senapati through the altered route without providing connectivity between Chunthan and Senapati, 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 Senapati 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 along with connected MPs. Interim directions also stand vacated." 24. Viewing the case in hand in the light of above legal position, I find the action contemplated to be taken cannot be stalled in acceptances of the stand taken by the petitioners. This Court has no role in law to probe whether construction of road in question is for a purpose other than represented by the executive in presence of sufficient material on record to depict it was intended for providing road connectivity to various hamlets and decision to do so was taken after due deliberations and reasonable amount of care. In a democratic set up the executive has to be allowed to function freely within the limits drawn by Constitution for exercise of its power. In a democratic set up the executive has to be allowed to function freely within the limits drawn by Constitution for exercise of its power. In consequence thereof, acquisition of the land for 'public purpose' and the eventualities covered by same has to be left to the discretion of authorities of State. 25. For what has been stated above, I am of the opinion that no ground has been made out for interference. The petition is held liable for dismissal and is, accordingly, dismissed. Interim direction, if any, shall stand vacated.