Jammu & Kashmir High Court - Srinagar Bench
Ghulam Nabi Mir And Others vs State Of J&K And Another on 27 November, 2020
Author: Puneet Gupta
Bench: Puneet Gupta
Sr. No. J1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Pronounced on: 27.11.2020
OWP No. 1690/2018
IA Nos. 1/2018 & 2/2018
CM No. 2152/2020
CM No. 3490/2020
CM No. 3495/2020
CM No. 3496/2020
c/w
CCP(S) No. 186/2020
CM No. 3075/2020
Ghulam Nabi Mir and others ......Petitioner(s)
Through :- Mr. Altaf Haqani, Advocate
v/s
State of J&K and another ......Respondent(s)
Through :- Mr. Moomin Khan, Advocate
Mr. Zubair Ahmad, Advocate
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: : (Through Virtual Mode from Jammu)
JUDGMENT
01. The petitioners claiming to be owners in possession of land measuring 03 Kanals along with residential houses situated at Barzulla, Srinagar have filed the writ petition by raising the grievance that the respondents have started constructing a pump shed for discharge of the effluents from the drainage though there is a full-fledged pump shed constructed by the J&K Economic Reconstruction Agency (ERA). In addition, another pump shed is also located in the area which caters to the needs of the residents of the area. However, the respondents are raising the pump shed without leaving any sort of space/setbacks from the side of the property of the petitioners thereby affecting the rights of the petitioners to enjoy their landed property. The further case of the petitioners is that the 2 OWP No. 1690/2018 properties of the petitioners shall render useless for the reason that the plinth level of the pump shed is higher than the second storey of the residential houses of the petitioners and any leakage in the pump shed shall damage the property of the petitioners. The construction is being raised on Kachari land without permission from the revenue department. The easementary rights of the petitioners stand compromised because of the construction being raised by the respondents. The respondents have encroached upon the road which is being used by the inhabitants of the area including the petitioners is another ground mentioned in the petition. The petitioners have filed application for amendment of the writ petition and also filed application for placing on record certain documents in support of their case which shall also be dealt with by the Court.
02. The objections to the writ petition have been filed by the respondents. Of course, the respondents have opposed the petition by stating that the petition is not maintainable on the ground that the respondents have not approached the court with clean hands as the petitioners have themselves encroached upon the drainage constructed by the respondents and further that they had filed a suit with regard to the subject matter of the writ petition during the pendency of the writ petition. No constitutional right of the petitioners is violated and the construction being raised by the respondents is for welfare of general public in order to ward off the floods. It is further pleaded that the construction of pumping station came into question due to the devastating floods of September, 2014. The project is funded by the World Bank and 49 existing de-watering stations by way of constructions are taken up by the official respondents. The construction is being raised with latest technology and will not cause any damage to the property of the petitioners. The site has been cleared by the government is also stated in the 3 OWP No. 1690/2018 objections. The private respondent has also negated the submissions of the petitioners while arguing the matter and has more or less argued on the lines of the stand taken by the official respondents. The objections to the application filed for amendment of the writ petition have been filed by the respondents.
03. Learned counsel for the petitioners has submitted that the rights of the petitioners are severely infringed due to the construction raised and still being raised by the respondents. The pumping station has been raised in close vicinity to the houses of the petitioners thereby threatening the construction raised by the petitioners and also easementary rights are going to be affected by such construction. The official respondents have shifted the station to new site with 4/5 marlas on kahcharai land and raising the capacity of the station to 15 cusec from o.75 cusec which is evident from the documents which the petitioners intend to place on record and also plead in the amendment petition. The learned counsel for the petitioners has also submitted written arguments.
04. The main plank of arguments of the respondents is that the rights of the petitioners are not violated due the construction which is being raised for welfare of the public in order to save the area from the floods. The petitioners approaching the Civil Court during the pendency of writ petition with the grievance that their rights are infringed and further that the petitioners have themselves encroached upon the drain area are the other factors which disentitle the petitioners to approach this Court for exercising extraordinary jurisdiction.
05. It cannot be disputed that the project undertaken by the official respondents and funded by the World Bank is meant for public at large as the purpose of raising the construction is to meet threat of floods in the area 4 OWP No. 1690/2018 which was devastated in the floods of September, 2014. The plea raised in the petition is that the easementary rights of the petitioners stand effected due to the ongoing construction by the respondents. It is evident from the pleadings in the writ petition that the petitioners have primarily raised grievance of easementary rights which allegedly stand effected due to ongoing construction though not specifying what sort of easementary rights are being infringed of the petitioners by the construction which is being raised by the official respondents. There can be no quarrel with the proposition of law that the infringement of easementnary rights cannot be determined and adjudged in the exercise of extraordinary jurisdiction vested in this Court under Article 226 of the Constitutution of India. The remedy for seeking relief in this regard lies somewhere else and not by way of writ petition. In any case, the contention of the petitioners that the houses of the petitioners can face extensive damage in future due to the pumping station is specifically negated by the respondents and court otherwise finds no reason not to rely upon this assertion and assurance of the respondents. It is expected that the respondents will take all the necessary measures with regard to the safety of the project.
06. It is significant to take note of the fact that the petitioners invoked the civil remedy against the construction being raised by the 1st respondents by filing a suit before the Court of Civil Sub-ordinate Judge, Municipal Magistrate, Srinagar during the pendency of the present writ petition. The suit was later on withdrawn as per the submission of learned counsel for the petitioners. Learned counsel for the petitioners has submitted that the petitioners perhaps chose to file the suit because of some urgency in the matter at that time. Learned counsels for the respondents have 5 OWP No. 1690/2018 vehemently argued that the petitioners could not resort to the parallel remedy as per their choice.
07. The very fact that the petitioners resorted to civil proceedings during the pendency of the writ petition speaks of the convenience with which the petitioners proceeded in the matter. The petitioners could not resort to parallel proceedings.
08. The respondents have taken stand that the petitioners are themselves guilty of encroaching upon a piece of land on which the drain runs through and thus the petitioners cannot approach the Court through present writ petition. The respondents have referred to notice dated 01.9.2020 issued by the executive engineer, city drainage civil Division, SMC Srinagar to the petitioner No.1 in this regard. The petitioner has encroached upon some area or not as pleaded by the respondents is a question of fact which cannot be finally gone into by the court in the present petition. Indeed the learned counsel for the petitioner refutes this allegation of the respondents during course of arguments and even submits that in case any violation is found to be done by the petitioners the respondents can always take recourse to law.
09. It is pleaded by the learned counsel for the petitioners that there was no reason to start the project when other de-watering station also existed in the vicinity. The court cannot agree with the contention of the learned counsel for the petitioners on this aspect of the matter. It is not for the court to assess about the feasibility of another station in the area inspite of the fact that other de-watering station exists in the area nearby. The authorities who have designed the project are the best ones to take call on having the station at any particular place. The project has been stated to have been prepared keeping in view the fury of floods of September, 2014 and to stop such 6 OWP No. 1690/2018 devastation in future. The court need not doubt the wisdom of the project makers.
10. The other contention of the learned counsel for the petitioners is that the facts of the case amply demonstrate that the official respondents have not started construction where it should have been and further that the respondents are raising the construction on kahchari land without prior permission of the competent authority and has referred to his letter issued by the Executive Engineer, SMC Srinagar vide No. CDC-SMC/2020/1839-41 dated 01.09.2020 addressed to the Deputy Commissioner, Srinagar with regard to the grant of post facto sanction for usage of Kahchari land at Bul Bul Bagh for dewatering station. The other side has submitted that the court cannot deal with the factual aspects of the case. The court is of the opinion that the petitioners have raised disputed question of facts which cannot be decided by the court in the present petition.
11. Learned counsel for the petitioners has also tried to point out that the respondents are not executing the project as per the approved plan. The other side has submitted that the argument of the petitioners has no force. The court is of the view that the court as an expert cannot analyze the details of ongoing project. The court is not required to assess the minute details of the project or to act as executing agency and see that the project proceeds as planned. Even if assuming deviation has taken place while executing the project, as submitted by the petitioners, that cannot be the reason to put halt to the project of such importance. The petitioners have not been able to demonstrate that the project will be sheer wastage and at the expense of public exchequer. The project has been funded by the World Bank. The authorities must have taken care of all the aspects including safety of the project while preparing the project.
7 OWP No. 1690/2018
12. The court should not interfere in the projects which are meant for public at large and have been approved keeping in view the positive impact which it can have in the future.
13. At the cost of repetition the petition filed by the petitioners in fact seeks remedy of their alleged violation of easementary rights which cannot be determined and granted by the Court in exercise of its extraordinary jurisdiction.
14. In view of the discussion made above, the court does not find any merit in the petition. The petition is, accordingly, dismissed along with all connected applications. The disposal of the petition does not come in the way of the petitioners to project their grievance before the competent authority or take any other remedy as may be available to them as per law.
(Puneet Gupta) Judge Srinagar 27.11.2020 Shammi Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No SHAMMI KUMAR 2020.11.27 16:08 I attest to the accuracy and integrity of this document