Jammu & Kashmir High Court - Srinagar Bench
Inhabitants Of Township Dangiwacha vs State And Ors on 12 October, 2017
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR
Case No: OWP 563/2011 Dated : 12TH of Oct.. 2017
INHABITANTS OF TOWNSHIP DANGIWACHA VS STATE AND ORS
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE RAMALINGAM SUDHAKAR- JUDGE
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No
FOR THE PETITIONER/s : MR. G.A.LONE
FOR THE RESPONDENT/s: .MR. JEHANGIR IQBAL GANAI, AG WITH
MR. IRFAN ANDLEEB, Dy.AG & M.Y.BHAT (M.K. HANJURA-J) 01/ The moot question that arises for determination here in this case is whether the setting up of a new Degree College at a particular location is within the jurisdiction of the political executive or the High Court, in exercise of its writ jurisdiction, can direct that it should be set up at a place other than the one chosen and decided by the Government. In order to find an answer to this question, it will be profitable to scan and analyse the pleadings of the parties and the allied material on record.
02/ The sum and substance of the petition of the petitioner is that to provide an opportunity of education at college level to the residents of Batsoma, Batapora, Liasar, Saripora, Wakhipora, Doligund, Charligund, Kangrosa, Rawoosa, Thagund, Marazigund, Chatoosa, Barampora, Waripora, Yaribug, Fidarpora, Dandusa, Markipora, Hammam Markoot & Dooniwara, the entire population, living in the upper ridges as well as in the plains of these villages, has been, over a period of time, spreading over a decade or so, clamoring for opening/establishing a college in the area situated at village Dangiwacha, Rafiabad, which is a central hub, accessible to the students and the people residing in different parts of Dangiwacha. The petitioners have proceeded to state that their case was processed and approval was granted for establishing of a Degree College at Dangiwacha, Rafiabad. The petitioners, in the heart of their hearts, were filled with joy when they came to know about the creation of the college at Dangiwacha, Rafiabad, but to their dismay, in a Cabinet meeting, held on 18-03-2011, at 8.30 AM, in the Civil Secretariat, Jammu, their hopes were razed to ground as the Cabinet, in violation of all norms, while deciding the creation of the colleges at different locations, ignored Dangiwacha, and instead decided the location for the college at Hadipora, District Baramulla. The petitioners have further pleaded that the Cabinet toed to the line of the respondent No.4, being the Minister of State for Health, who hails from a village, 03 kms. away from Hadipora, Baramulla, and decided that the location of the college on his asking although on the representation of the citizens forum , Rafiabad J&K, the Secretary to Government Higher Education Department asked the Principal, Government Degree College, Sopore, to furnish the feasibility report for the establishment of Degree College, at Dangiwacha and he reported that it will be apt and proper to establish the same at the given place as it fulfils al the requisites.
03/ The respondent NOs. 1-3 have resisted and controverted the petition of the petitioners on the grounds, inter alia, that under the Jammu & Kashmir Business Rules, the policy decisions are not being influenced by any individual but a collective decision is taken by the Cabinet comprising the Cabinet Ministers, including the Chief Minister. The respondent No.4 was a Minister of State and the Ministers of State do not, usually, participate in the Cabinet meetings. The proposal for establishing of a degree College at Dangiwacha, was never placed before the Cabinet but a memorandum was submitted to the Cabinet for the establishment of a college at Hadipora, Baramulla. In order to promote higher education in the State, 11 Degree Colleges, for various Districts under the State Plan, were sanctioned by the Cabinet on 18-03-2011 and it was decided that a Government Degree College will be established at Hadipora, Baramulla. 04/ The respodnents have proceeded to state that Tehsil Rafiabad, District Baramulla, within the territorial limits of which, village Dangiwacha is also located, falls at a distance of 05 kms. only from Hadipora, Baramulla. It has further been stated that the place, identified for establishment of a Degree College at Hadipora, Baramulla, consists of 41 kanals of State land and 51 kanals of proprietary land, which is away from the hustle and bustle of the township of village Hadipora, Baramulla. The place is located at a distance of 01 km. from Hadipora, and is situated in contiguity to Baramulla - Hadipora National Highway, which is accessible both to the staff and the students as the place forms the centre point of Rafiabad Block. The location of the place has been more properly described below keeping in view the number of the Higher Secondary Schools and the distance involved from them to the proposed site of the college. It reads as under :
"Distance from Higher Secondaries Hadipora to proposed site = 1 km Hadipora to Doabagh = 4 kms Hadipora to Behrampora = 6 kms Hadipora to Dingiwacha = 5 kms Hadipora to Rohamaa = 5 kms"
05/ It has further been stated that the College at Hadipora, will attract the students from Doabagh and Ruhama, who, otherwise find Sopore College nearer to them than that of Dangiwacha and doing so will reduce the burden of 04 colleges of Baramulla and Sopore, which are already over-burdened. It has been stated that the following is the enrolment of the students of the area in the adjoining colleges : "Government College (Boys), Baramulla. 89
Govt. Degree College for Women, Baramulla. 115 Govt. Degree College (Boys), Sopore. 86 Govt. Degree College for Women, Sopore 60 Total 350" 06/ It has also been stated that 62 villages are located around the
area and the list thereof is attached as annexures R1 & R2 to the petition and in case the college is established at Dangiwacha, it will attract the students from Dangiwacha, only. The students from Doabagh, Hadipora, Behrampora and Rohama may prefer the colleges situate at Baramulla and Sopore as these colleges have a better connectivity with these areas. The enrolment of the students in the four colleges, it has been stated depicts a clear picture and the chart showing comparative distance has been given as under :
S. Distance Sopore Baramulla Dingiwacha Present No. Site 1 Hadipora to 7 km 12 kms 5 kms 1 km 2 Rohama to 12 kms 15 kms 10 kms 5 kms 3 Behrampora to 8 kms 17 kms 6 kms 6 kms 4 Doabagh to 5 kms 10 kms 9 kms 4 kms Enrolment in five Higher Secondary Schools sessions, 2011 S. HSS HSS HSS HSS HSS N Doabag Hadipora Behrampora Roham Dangiwac o. h a h 1 11th Class 119 200 134 240 273 2 12th Class 96 287 99 254 249 07/ It has been averred further that Since the land for the proposed college has not been identified at Dangiwacha, it is presumed that if such a proposal is considered, the land may have to be identified 02 to 05 kilometers. outside the Dangiwacha township which will further increase the distance of the college for the above said population.
Dangiwacha, is at the extreme of a link road, 03 kms. away from Watergam, a village in Baramulla - Handwara National Highway. Taking the Dangiwacha town as reference point, following will be the distance from the Higher Secondary schools.
Dangiwacha Higher Secondary School 0 km
Behrampora to Dangiwacha 06 kms
Hadipora to Dangiwacha 05 kms
Rohama to Dangiwacha 10 kms
Doabagh to Dangiwacha 08 kms
08/ In case the college is located at Dangiwacha, the villages of
Qaziabad, Ratsum, Rawoocha, Waripora, Sengrampora, Chanum, Zethan, Hatchipora as one side Yarbug, Machanpora, Didarpora, Soin, Batpora, Bakhpora, Ashtanpora, will fall in the catchment area. 09/ The respondent No.4, has, in his objections, stated that he is a MLA and as such is not the decision making authority. He has reiterated that the Cabinet decided to establish the Govt. Degree College at Hadipora, Baramulla, and this decision was taken by the Council of Ministers and has to be acted upon. The allegations levelled against him are baseless and false. He holds all the residents of his constituency in equal estimation and he can never dream of discriminating the residents on the basis of the area of their living. In each and every case, it is the public interest that is of paramount importance and the individual interest has to collapse under its weight. He has further stated that the petitioners knocked at the doors of the politicians and sought their intervention to get the college established at Dangiwacha and the letters in this behalf are attached to the writ petition.
10/ By a subsequent development, the newly added respondents of 43 villages filed their objections to the petition of the petitioners in which they asserted that the writ petition has been filed by some people who have a vested interest in the establishment of college at Dangiwacha as most of them are businessmen and they want their businesses to flourish. They have proceeded to state that the petition has been filed by the villagers of 11 villages, while as more than 43 villagers support and claim that the college deserves to be established at Hadipora, Baramulla, instead of Dangiwacha, Baramulla, and the State Government, after considering the feasibility in the public interest, accorded sanction to the establishment of a Degree College at Hadipora.
11/ Heard & considered. 12/ The entire gamut of controversy, raised here in this petition,
revolves round the plea as to whether the claim of the petitioners for seeking establishment of the Degree College at Dangiwacha, is sustainable under law and whether the action taken by the Government, in according sanction to the establishment of the Degree College at Hadipora, is liable to be struck down. It needs must be said that the Cabinet took a policy decision and resolved that the Degree College should be established at Hadipora and not at Dangiwacha, as contended by the petitioners. The political executive is the best judge to asses, in the interest of the public, as to which place should be convenient for running and establishing an educational institution. The decision on such policy issues is within the domain and power of those, who have been elected by the people to govern. The governance and law is their prerogative. The Courts cannot have the propensity to take over the governance. The function of the Courts is to set aside any law, which is found to be unconstitutional or any order, which is found to be arbitrary. The respondents have justified the proposed action by giving facts and figures in their reply. They have portrayed as to how the establishment of the college at Hadipora is in the public interest. The location chosen for the establishment of the college is said to be just 05 kilometers away from Dangiwacha and it is located at a distance of 01 km. from Hadipora, meaning thereby that it is a place of convenience for both the areas as the distance involved from these two places upto the proposed location of the college is too minimal. It comprises of a huge chunk of land as detailed herein before, which suggests that the Government has taken into consideration the future prospects of the extension and expansion of the college, based on need that may surge forth in the days to come.
13/ The Courts cannot tread into the executive territory nor can the Courts sit in the judgement of the executive, particularly, when valid reasons are given for taking a particular decision as has been done here in this case. A three Judge Bench of Hon'ble the Supreme Court, while considering an almost similar issue, as raised herein in the case titled Union of India versus Nagesh - 2002(7) SCC 603, held as under :
"After we heard the matter, we are of the view that such a direction could not have bee issued by the High Court to the appellants herein in a petition under Article 226 of the Constitution. What would be the scheduled timings for a train for its departure and arrival is an administrative decision keeping in view the larger public interest or public convenience and not the convenience of the public of a particular town. Such a decision is within the exclusive administrative domain of the Railways and is not liable to be interfered with in a petition filed under Article 226 of the Constitution. (Emphasis supplied) In spite of the said decision rendered in regard to the similar earlier orders of the said High Court, the Division Bench of the High Court has chosen to indulge in a similar exercise in this case."
14/ From a bare perusal of the law laid down above, what comes to the fore is that administrative decision/s, regarding issues of the larger public interest or public convenience and not the convenience of the public of a particular town or area, are within the exclusive domain of the political executive and those decisions are not liable to be interfered with. Again in the case of Directorate of Film Festivals versus Gaurav Ashwin Jain [2007 (4) SCC 737], the Court held as under:
"The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review."
15/ The decision cited above repeats and reiterates that the Courts cannot usurp the powers of the executive by entering into the area which is within their exclusive jurisdiction.
16/ The House of Lords, setting the limits of judicial review in Chief Constable of the North Wales Police versus Evans 1982 (2) All ER 141, concludes as under:
"The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. .. Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power. This court has repeatedly warned that courts should resist the temptation to usurp the power of the Executive by entering into arenas which are exclusively within the domain of the executive."
17/ Applying the ratio of the law laid down supra to the facts of the instant case, it is loud and clear that the power and the authority of the Courts to examine the correctness, suitability and appropriateness of a policy of the Government is limited in its scope and extent. The Courts can sit in the judgement of the executive and trample on it only in case it violates the fundamental rights of the citizens or is in conflict with the provisions of the Constitution or is opposed to any statutory provision or is manifestly arbitrary. The decision of the political executive in establishing the college at Rafiabad, Baramulla, is not amenable to judicial review as, on the face of it, it is neither violative of the fundamental rights of the citizens nor is it opposite to the provisions of the Constitution or any statutory provisions nor is it manifestly arbitrary. Its location has been proposed at a central place and has been found to be feasible in all other respects taking into consideration the quantum of land, the distance involved from different villages located around it and to cap it all, it is away from the hustle and bustle of the main town, be that Rafiabad or Dangiwacha and is, therefore, best suited to the educational environment for setting up the colleges by towns may be stimulating but they come with their share of crime, noise pollution, crowds and traffic. To set up the college outside the town which herein this case is 1 kilometre away from its main town is an ideal academic oasis.
18/ Learned counsel for the petitioners has placed reliance on an authority of law reported in 2009(1) SLJ 1, to carve out a case for the petitioners, which to my mind, does not have any application to the facts and circumstances of the instance case. In the said case, the process to select Rahim Thang as the Head Quarter of the New Block in District Kargil, was stated by the Court on the ground that no record, suggesting that there had been any application of mind to ascertain public convenience or inconvenience, was produced before the writ Court. It was also held that the Head Quarter of the block is to be located at a place where the people will interact and will be interacted and the decision to locate the same should be taken in the backdrop of the convenience of the people. However, in the instant case, the respondents have justified the establishment of the Degree college at Hadipora, Baramulla, by giving the facts and figures in their counter affidavit. The villagers of 63 villages have supported the decision of the executive. Not only this the parameters for the establishment of a degree college and a block cannot be the same. College is an educational hub and the proposed site is just 5 kilometers away from Dangiwacha. Therefore, it can, by no stretch of imagination, be said that there was any lack of application of mind to ascertain the public convenience or inconvenience. There, thus, is no merit in the petition of the petitioners, which entails dismissal and is, accordingly, dismissed along with connected IAs. 19/ Before parting, it is stated in an apparent digression, that one gets saddened to see how the persons holding political posts have acted and behaved in this matter. There is a letter of the Union Minister of Water Resources dated 21-03-2011, addressed to the Higher Education Minister, J&K, wherein the Union Minister has said that it is the settled fact that the college has to be established at Dangiwacha. The Minister for Health, Horticulture and Floriculture, has addressed a letter to the Minister of Higher Education, Labour and Employment, J&K, on 25-03-2011, attached as annexure-K to the petition, which states that the inhabitants of Dangiwacha called on him and submitted that the case for establishment of Degree College was processed in Higher Education Department in August, 2009 but nothing has been finalized till date. The said inhabitants are pressing hard for establishing the said College at Dangiwacha as the students of the adjoining area are facing inconvenience for want of higher education. The Minister of Medical Education has also toed to the line and in his letter dated 27-03-2011, addressed to the Minister of Higher Education, Labour and Employment, he has stated that the Principal, Govt. Degree College, Sopore, has submitted a detailed and comprehensive feasible report for the establishment of Degree College at Dangiwacha, Baramulla, and the matter may kindly be examined for the logical disposal of the request. The then Minister for Revenue, Relief and Rehabilitation has also followed the suit and in his letter dated 13-04-2011, he has stated that the Citizens Forum, Rafiabad, Dangiwacha, District Baramulla, approached him for the reconsideration of the decision to set up the Degree College at Hadipora, and the matter may be looked into on priority basis for reconsideration of the decision taken by the Government for establishment of Degree College at Hadipora. Some of these have addressed the letters after the Cabinet took the decision on 18- 03-2011 for establishing the Degree College at Hadipora some of these, should have been a part of the decision making process. After the Cabinet decision, how could they change the colors. This, does not augur well for the representatives of the public. 20/ Record of the case be returned to the learned Advocate General.
TARIQ Mota SRINAGAR.
12 -10-2017 ( M.K.HANJURA ) (RAMALINGAM SUDHAKAR)
JUDGE JUDGE