Jammu & Kashmir High Court
Palm Island Space Owners Welfare … vs Union Of India And Others on 7 April, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT JAMMU
WP(C ) No. 1588/2024
Reserved on :25.03.2025
Pronounced on: 07 .04.2025
1. Palm Island Space Owners Welfare Association through
President Ashwani Kumar
2. Ashwani Kumar son of Prem Nath resident of 50B Tirth Nagar,
Jammu
3. Lokesh Sharma son of Suraj Parkash Sharma resident of 51,
Hazipura Last Morh Gandhi Nagar, Jammu
4. Pawan Singh Manhas son of Sh. Bhim Singh resident of Patel
Nagar, Jammu
5. Rajan Gupta son of Dev Raj Gupta resident of JMC 680 Lane
No.5 Bhawani Nagar Talab Tillo Jammu
6. Vishal Sharma son of V.P.Sharma resident of 508/E Sainik
Colony Jammu
7. Pushap Lata Slathia wife of Atma Singh Slathia resident of 238
Patel Nagar TalabTilo, Jammu
8. Mayank Gupta son of Sunil Gupta resident of 101 A/D Green
Belt Park Gandhi Nagar, Jammu
9. Dhruv Malhotra son of Dinesh Malhotra resident of 194 A/D
Green Belt Park Gandhi Nagar, Jammu
10.Naveen Kumar Gupta son of Om Parkash Gupta resident of 15/2
Nanak Nagar Jammu
11.Ashok Sharma son of Lachhman Dass resident of 64 Lane No.3
Greater Kailash Jammu
12.Rohini Khajuria daughter of Jagdish Chander Khajuria resident
of 73/A Subash Nagar Rajpura Road Jammu
...petitioners
Through: -
Mr. Vikram Sharma Sr. Advocate with Mr. Sachin
Dev Singh Advocate.
Mr. S. Sanpreet Singh and
Mr. Zaheer Abbas Khan Advocate.
Vs.
Union of India and others
...respondents
Through: –
Mr Rahul Pant Sr. Advocate with
Mr. Anirudh Sharma Advocate
Mr. Sunny Mahajan Advocate
2Mr. Mohd Aleem Beg Advocate with
Mr. Harmit K. Mehta AdvocateCORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT ,
1 Petitioners Nos. 2 to 12 claim to be the members of
petitioner No.1-Association and owners of commercial spaces in Palm
Island Mall, Canal Road, Jammu. Through the medium of present writ
petition, they have sought a direction upon the official respondents to
carry out the construction work of 4-Lane Flyover from 4th Bridge near
Bhagwati Chowk to Canal Head on the Jammu-Akhnoor Road Section
of NH-144A in Jammu strictly in accordance with the approved
Detailed Project Report (for short ‘DPR’) and technical specifications.
A further direction has been sought upon the official respondents to
adhere to and not to deviate from the approved design and technical
specifications of the DPR of the said Flyover, with a direction
restraining the official respondents from reducing the width of the road
in front of Palm Island Mall by constructing a blind wall.
2 According to the petitioners, the commercial complex,
Palm Island Mall, was constructed after approval of the building plan
from the Building Operations Controlling Authority of Jammu
Municipal Corporation and as per the sanctioned plan, a provision was
made for entry into the Mall from the Akhnoor Road side with a
40- feet wide road. It has been submitted that, even as per Master Plan
2021 and Master Plan 2032, there is a requirement of minimum road
width of 15 meters for a commercial complex/Mall. It has been further
3
submitted that the Mall in question houses three multiplexes, two
restaurants, two food courts, shopping stores, and office spaces, and it
is comprising of three basement storeys and five storeys above ground.
The Mall is stated to have become operational in the year 2018, after
obtaining all requisite NOCs and after its operationalization, the
widening work of Akhnoor Road was undertaken by the respondent-
National Highways & Infrastructure Development Authority Ltd.(‘for
short ‘the Authority’)
3 It has been submitted that an e-tender dated 10.08.2021
was floated by the Authority for the construction of a 4-lane road with a
paved shoulder configuration, along with a service road, from 4th Tawi
Bridge (D.Ch.0.000) near Bhagwati Chowk to Canal Head
(D.Ch.1.350) on Jammu-Akhnoor road section of NH-144A. After
completion of tendering process, the contract for the construction of
Flyover was awarded to M/S Maan Builders-respondent No.5 herein, in
terms of a letter of acceptance dated 24.09.2022. As per this letter of
acceptance, the proposed length of the Flyover was 1.350 km,
extending from 4th Bridge to Canal Head, and its estimated cost was
shown as Rs.158.97 crores. As per the approved DPR, the Flyover was
to culminate with its merger with the existing Flyover at the specified
merger point at 1.350 km. According to the petitioners, the Flyover
from Bhagwati Chowk was to be raised at the level of existing Flyover
and an entry ramp was proposed to be constructed from Canal Head
Chowk, to be raised to merge with the Flyover at 1.050 km, i.e., at a
point between Pillar Nos.6 and 7 of the proposed Flyover. It has been
4
submitted that the DPR was approved keeping in mind the fact that the
main entrance to the Mal in question on the existing Akhnoor Road is
located on the left side of the proposed flyover. Thus, according to the
petitioners, the merger of the flyover with the existing flyover was
proposed at 1.350 km to ensure that the road in front of the Mall right
at its entrance gate is not reduced in width and that the front elevation
and aesthetics of the said complex and other buildings are not adversely
affected.
4 It has been submitted that while the project was under
execution, the petitioners noticed that the height of the pillars raised
ahead of Canal Chowk towards Akhnoor Road was considerably lesser
than what was designed and approved in the DPR, as a result of which,
they became suspicious and sought clarifications from the contractor.
Upon inquiry, the petitioners came to know that the contractor has been
asked to deviate from the approved DRP, so that, instead of merging
the proposed 4-lane flyover with the existing flyover at the approved
point at 1.350 km, the flyover is being made to land short of the
approved point i.e at 1.000 km by tapering down its height immediately
after crossing the Canal Head rotary. It has been submitted that the said
deviation has been made by the official respondents with an ulterior
motive, as a result of which, the entire commercial viability of the Mall
in question would get adversely impacted which, in turn, would affect
the commercial interests of the space holders. It has been alleged that
the proposed deviation would result in reduction of entry road to the
Mall to a mere 14 feet.
5
5 The petitioners have challenged the aforesaid action of the
respondents on the ground that the official respondents have changed
the approved DPR and technical specifications in an arbitrary, illegal
and mala fide manner. It has been contended the respondent No.5-
contractor has no authority or competence to change the structural
specifications of the entire 4-lane flyover and that the contractor has to
execute the work in accordance with the approved DPR. It is also being
claimed that even the respondent-Authority or its consultants have no
authority to alter the design specifications of the flyover. It has been
contended that as per the approved DPR and the specifications, it was
ensured that width of the entry to the Mall is not reduced and aesthetics
of the existing buildings are not adversely impacted. It has been further
contended that the official respondents are intending to descend the
flyover proceeding from 4th Bridge midway onto the main Jammu-
Akhnoor Road almost right in front of the main gate of the Mall which
would result in blocking the front entrance of the commercial spaces of
the petitioners and the Mall itself. It has also been claimed that the
deviation proposed by the official respondents is not technically
feasible and it may even have serious consequences on the security and
safety aspects of the flyover. It has been contended that the proposed
deviation would result in traffic congestion and the object for which the
flyover has been proposed would get defeated.
6 Respondents No. 1,2,6,7, & 8, in their objections to the
writ petition, have submitted that NH-144A from 4th Tawi Bridge (Km
0.000) to Hanuman Chowk (Km 30.097) was entrusted to the Authority
6
in terms of Gazette Notification No.615 dated 20.03.2015. It has been
submitted that the project was divided into four packages, out of which,
based on the availability of land, Jammu-Akhnoor Road Package-II
& Package- III i.e., from Canal Head (Km 0.800) to Ganesh Vihar
(Km. 6.000) and From Ganesh Vihar (Km 6.000) to Thathi Chowk
(Km 26.350), were awarded to the respective contractors on 15.03.2018
and 20.03.2019. It has been submitted that initially, it was proposed
that the construction of package-II flyover would be restricted at Km
1.350 and separate entry and exit ramps would be provided from the
sides to make the flyover functional. However, the said proposal was
not approved by the headquarters, as by then, the proposal of package-I
was not finalized, and it would have delayed the completion of
package-II Flyover. It is, in these circumstances, that the DPR of
package-I was prepared, keeping in view the most feasible integration
option of restricting package-II flyover at 1.350 km and providing entry
and exit ramps from the sides as the package-II was still under
construction at the relevant time. Accordingly, based on the aforesaid
DPR, the Authority invited bids for the project, but by then, the
planned up-ramp and down-ramp portion of package-II flyover for
merger of package-I was completed by the concerned contractor. The
Jammu Akhnoor Road package-II flyover was finally made operational
for traffic on 15.10.2022, but by then, the package-I project was still
not finalized and the same was under tendering stage. Thus, according
to the respondents, delaying package-II project would have resulted in
7
additional costs to the Government exchequer and inconvenience to the
public at large.
7 It has been submitted by the respondents that it is in the
circumstances explained hereinabove, that the tenders were invited on
the basis of the DPR which involved integration of package-I flyover
with package-II flyover at Km 1.350 and providing separate entry and
exit ramps from sides, whereas, by that time, package-II flyover was
already complete and was functional. It has been claimed by the
respondents that if the proposal for merger of package-I flyover with
package-II flyover, as provided in the original DPR, was carried out, it
would have led to demolition of approximately 450 meters of the
already completed package-II flyover. This prompted the official
respondents to explore other options, as the demolition of existing
flyover to the extent of 450 meters would have resulted in
inconvenience in the form of traffic congestion, difficulties to the
residents of the locality for about 4 years, along with loss to the
Government exchequer. Keeping these ground conditions in view, the
respondents proposed to terminate package-I flyover within Km 1.000
after crossing Canal Head Chowk instead of Km 1.350 and providing
entry and exit ramps from the sides. It has been submitted that the
contractor was asked to submit a fresh design, which is under
consideration. It has been further submitted that there may be need to
acquire additional land to execute the new proposed design. The
respondents have submitted that the acquisition of the additional land
would partially affect the structures, including an empty plot of land,
8
gates and some portion of the Palm Island Mall, and the front portion of
04 shops after crossing the Mall. It has been specifically mentioned that
this would, in no way, lead to blocking of the entry or exit to the Mall
or reduce width of the entry. It has been submitted that, as per the fresh
proposal, a proper entry is being provided to the Mall from the service
road of NH-144A.
8 The respondents have explained that if the project is
executed as per the already approved DPR, it would lead to the
demolition and reconstruction of the existing flyover up to Km 1.350
which would lead to coming up of pillars for the entry and exit ramps
in front of the commercial establishments from Km 0.800 to Km 1.350
on the left hand side, which includes the Palm Island Mall. This,
according to the respondents, would require acquisition of more land at
this belated stage. The respondents have submitted that, in terms of
Clauses 3.1 and 5.2 of the contract agreement dated 15.12.2023, it has
been expressly provided that no representation regarding the accuracy,
adequacy correctness, reliability of any assessment, assumptions,
statements or information provided by the respondents is being made,
and the contractor shall have no claim against the authority in this
regard.
9 Respondent No.5, the contractor, has filed a separate reply
to the writ petition. It has been submitted that the approved DPR has
been prepared so as to ensure that that aesthetics of the commercial
establishments and access to the Mall in question is not affected. It has
9
been submitted that, as per clause 3.3 of the DPR, there is a provision
for removal the silt ramp for merger of package-I and package-II of
the project, which, in other words, according to the respondent,
contractor, means that the contention of the official respondents as
regards the dismantling of a portion of the flyover was already provided
for in the merger plan as envisaged in the approved DPR. It has been
further submitted that respondent No.5, contractor, is under pressure
not to work in accordance with the approved DPR and that the official
respondents are making frequent changes to the project. Respondent
No.5, contractor, while admitting that he is bound by the decision of the
official respondents and that he cannot execute the work on his own,
has submitted that any deviation from the approved DPR would
compromise with the safety and viability of the flyover, which is to be
maintained by him for next 10 years after completion of the project. It
has been submitted that respondent No.5 has already submitted its
objections to proposed deviation in terms of his communication dated
24.07.2024, but the official respondents are proposing to deviate the
specifications and the DPR. It has been submitted that if the proposed
deviations are approved, the same may create black spots and
hazardous conditions in future, and it may also give rise to traffic
congestion and may become an issue of public safety.
10 Respondent No.3, the authority, which has prepared the
DPR in its reply to the writ petition, has submitted that the DPR has
been prepared by it in consultation with the local authorities and the
administration as per the requirements of the project.It has been
10
submitted that the DPR was prepared after proper field work and after
taking into account the engineering design and available land resources.
It has, however been submitted that the DPR prepared by it is not
binding upon the Authorities of the official respondents and that the
same can be altered and changed as per the requirements and
description. It has also been submitted that the flyover or road cannot
be constructed for conferring benefit upon the one person, but the same
has to be constructed keeping in view the lager interests of the society.
11 Pursuant to order dated 10.12.2024 passed by this Court, a
supplementary affidavit came to be filed by respondent No.7 in which
it has been submitted that keeping in view the requirements of defence
forces and issues regarding congestion being faced by the general
public, it was decided to go ahead with the construction of the project
relating to flyover starting from 4th Tawi Bridge up to Hanuman
Chowk, Akhnoor in four stages as it was practically impossible to have
entire parcel of land for the project in one go. The first phase of the
project starts from 4th Tawi Bridge near Bhagwati Nagar Chowk up to
Canal Head (Km 0.000 to Km 1.350). The second package was up to
Km 6.000 from Canal Head to Ganesh Vihar. Pakage-IIIA and
Package-IIIB was up to hanuman Chowk, Akhnoor.
12 It has been submitted that the work on package-II from
Canal Head to Ganesh Vihar was started in the year 2019 and it was
concluded on 15.10.2022 but during its execution, Package-II and
Package-I could not be finalized as there were issues with regard to
11
alignment and land acquisition. It has been submitted that the DPR for
package-I was prepared in view of the most feasible integration option
of restricting package-II flyover at Km 1.350 and providing entry and
exit ramps from the sides as Jammu-Akhnoor Road Package-II flyover
at that time was still under construction and was not completed. On this
basis, the bids were invited. Package-II flyover was completed by the
contractor and it became operational on 15.10.2022.
13 According to respondent No.7, because package-II was
already complete and the scope of package-1 was from Km 0.000 to km
1.350, it would have involved demolition of a part of the existing
flyover under package-II for giving effect to the merger plan proposed
in the DPR. It has been submitted that in such an eventuality the
already constructed flyover under package-II would have been rendered
non-operational for two to three years, besides it would have caused
wasteful expenditure to the tune of approximately Rs.50 crores. In is, in
these circumstances, that respondent No.5,contractor was asked to
provide other options for merger of package-I and Package-II. The
proposals submitted by the contractor, according to respondent No.7,
are under review and have been submitted to the headquarter of the
Authority for approval.
14 According to respondent No.7, in terms of Article 13 of
contract agreement, there is a provision for change in the scope of work
and that the DPR is not a binding document upon the respondent-
Authority. Respondent No.7 has denied that change in the scope of
12
work is motivated by any ulterior reason. It has been submitted that the
change in the scope of work is in the interests of public at large,
national security and the Government exchequer. It has been submitted
that the respondent-Authority is well within its right to change the
scope of work to avoid any inconvenience to the public and to avoid
loss to the Government exchequer.
15 Respondent No.7 has specifically stated that the project
will not proceed further till such time the safety concerns relating to the
project are properly met. It has been further submitted that the Mall in
question has been made operational in the year 2018, whereas the
project was handed over to the Authority in the year 2015 in terms of
Gazette Notification dated 20.03.2015, therefore, it was incumbent
upon owners of the Mall in question to seek permission of the National
Highway Authority, in terms of Sections 28, 29 and 38 of the Control
of National Highways (Land and Traffic) Act, 2002. It has been
submitted that promoters/builders of the Mall have 7 meters of service
roads in front of the Mall and they have another entry to the Mall from
back side as well. It has been submitted that even if the proposed
change in the DPR is carried into effect, still then, the
promoters/builders will have the service lane of same width i.e 7
meters. It has been further submitted that construction of the project as
per the proposed change will not, in any manner, affect the petitioners.
16 Besides the aforesaid pleadings, pursuant to order dated
31.12.2024 passed by this Court, respondents 1,2,6,7 and 8 have placed
13
on record copies of as many as 50 communications exchanged by the
parties, inter se, on the subject starting from 11.07.2014 to 30.01.2025.
Reference to the relevant communications shall be made at the
appropriate stage of this judgment.
17 I have heard learned counsel for the parties and perused
record of the case.
18 Mr. Vikram Sharma, learned Senior Counsel appearing for
the petitioners, has contended that if the proposed change in the merger
plan of package-I and Package-II of the flyover is given effect to, it
would have adverse consequence for the petitioners, who are owning
commercial spaces in Palm Island Mall, which is located on one side of
the Jammu-Akhnoor NH-144A. The concern of the petitioners is that
the proposed deviations in the DPR would block/narrow down the entry
to the Mall in question and it would also adversely impact its aesthetics.
This, in turn, would have disastrous consequences on the commercial
interests of the petitioners, who are operating their business from the
said Mall, as it would be difficult for the commuters and customers to
access the Mall. The learned Senior counsel has submitted that the
proposed change in the DPR has been made with a view to benefit
some influential people and that the respondent-Authority has no
jurisdiction to change the scope of work after the DPR has been
approved. In this regard, the petitioners find support from the stand
taken by the contractor respondent No.5, both in his pleadings as well
14
as the in the arguments advanced by learned counsel appearing for the
said respondent.
19 Mr. Rahul Pant, learned Senior counsel appearing for the
respondents, (except respondent No.5), has contended that the present
litigation has been sponsored by respondent No.5, who has certain
disputes with the respondent-Authority. He has contended that the
official respondents are well within their rights to change the scope of
work in terms of clauses of the contract and, in the instant case, the
decision to change the scope of the work has been taken in the best
interests of the public, the Government exchequer and the technical
feasibility of the project. It has been submitted that, with the change in
the scope of work, the petitioners are not going to be adversely
affected, as neither the entry to the Mall would get blocked, nor would
its width get reduced. The learned Senior counsel has also contended
that before making the Mall operational, the promoters/builders should
have obtained NOC from the National Highway Authority of India,
which, in the instant case, has not been done. Therefore, it is not open
to the petitioners to challenge the proposed action of the official
respondents.
20 So far as the contention of the learned Senior counsel
appearing for the official respondents that the present litigation appears
to be a sponsored litigation on behalf of respondent No.5, the contractor
is concerned, the same appears to be without any substance, for the
reason that the official respondents, in their reply, have clearly stated
15
that the proposed change in the scope of work would require
acquisition of additional land, which would partially affect three to four
structures, including an empty plot of land, gates and some portion of
the Palm Island Mall, and the front portions of 04 shops after crossing
the Mall. The fact that proposed change in the scope of work may result
in shifting the exit/entry gate of the Mall and altering the outside
boundary wall, is a good enough reason for the petitioners to apprehend
that access to the Mall and its open parking space would get adversely
impacted. It is for this reason that the petitioners have approached this
Court by way of present writ petition. Merely because respondent No.5,
the contractor, is supporting their case, does not make it a sponsored
litigation. The contention of the official respondents in this regard is,
therefore, without any merit.
21 That takes us to the merits of the case. As already stated,
according to the petitioners, as well as according to respondent No.5, it
is not open to the official respondents to change the scope of work
once the DPR has been approved, on the basis of which, the work has
been put to tenders. In this regard, if we have a look at Articles 13.1
and 13.2 of the contract agreement, it is clear that the contract provides
for change in the scope of work. As per Article 13.1, the National
Highway Authority of India has the power to require the contractor to
make modifications/alterations to the works, where-after, the contractor
has to submit a proposal for the said change. The term ‘change in
scope’ has been defined to include changes in specifications of any
item of the work, omission of any work from the scope of the project,
16
any additional work, plant, materials or services which are not initially
included in the scope of project. Article 13.2 provides for procedure
for change of scope. It lays down that the contractor will have to submit
a detailed proposal within 15 days from the receipt of change of scope
notice. The detailed proposal submitted by the contractor has to be
considered by the respondent-Authority and it may, at its sole
discretion, either accept such change of scope with modification or
reject the proposal and inform the contractor of its decision. The
contractor cannot undertake any change of scope without the express
consent of the respondent-Authority, except for meeting any
emergency, that too, with verbal approval of the Authority.
22 Thus, the contention of the petitioners that once DPR has
been approved, on the basis of which, tenders are invited, it is not open
to the official respondents to change the scope of work, is without any
merit. The contract document specifically provides and gives authority
to the official respondents to change the scope of work and allows the
contractor to submit a proposal in this behalf. The changed proposal
can be put into execution only after the same is approved by the official
respondents.
23 The second ground of attack against the proposed change
of scope of work that has been launched by the petitioners is that the
same is not technically feasible, inasmuch, it will block the entry to the
Mall, cause traffic congestion, and pose safety risks for the commuters.
According to the petitioners, the approved merger plan of flyover
17
package-II was technically feasible and appropriate, and the manner in
which the official respondents intend to execute the merger plan will
have disastrous consequences as the same is not technically feasible.
24 I am afraid the merits of the contention raised by the
petitioners cannot be gone into by this Court. The Supreme Court and
various High Courts of the country have time and again held that the
issues pertaining to technical aspects regarding infrastructure projects
are subject matter of experts. Neither this Court nor the petitioners are
at all equipped to decide upon the viability and feasibility of the
proposed change of scope of work. Whether the merger scheme
proposed by the official respondents would be technically feasible or
whether it would serve the larger public interest are matters beyond the
scope of judicial review.
25 The Supreme Court, in the case of Union of India vs
Kushala Shetty and others, (2011) 12 SCC 69, while dealing with a
similar issue relating to a project that was being executed by the
National Highway Authority of India, has observed as under:
“24. Here, it will be apposite to mention that NHAI is a
professionally managed statutory body having expertise in
the field of development and maintenance of National
Highways. The projects involving construction of new
highways and widening and development of the existing
highways, which are vital for development of
infrastructure in the country, are entrusted to experts in
the field of highways. It comprises of persons having vast
knowledge and expertise in the field of highway
18development and maintenance. NHAI prepares and
implements projects relating to development and
maintenance of National Highways after thorough study
by experts in different fields. Detailed project reports are
prepared keeping in view the relative factors including
intensity of heavy vehicular traffic and larger public
interest. The Courts are not at all equipped to decide upon
the viability and feasibility of the particular project and
whether the particular alignment would subserve the
larger public interest. In such matters, the scope of
judicial review is very limited. The Court can nullify the
acquisition of land and, in rarest of rare cases, the
particular project, if it is found to be ex-facie contrary to
the mandate of law or tainted due to mala fides. In the
case in hand, neither any violation of mandate of the 1956
Act has been established nor the charge of malice in fact
has been proved. Therefore, the order under challenge
cannot be sustained”.
26 From the foregoing analysis of law on the subject, it is
manifest that this Court, while exercising its writ jurisdiction, cannot go
into the question as to whether the approved merger plan of package-I
and Package-II of the flyover in question was more technically feasible
and beneficial to public interest or whether the new plan, which is still
under consideration, would be better suited keeping in view the over all
facts and circumstances. This is a matter which cannot be decided by
this Court and it is best left to the judgment of the experts of the
respondent-Authority.
27 The other contention of the petitioners is that if the
proposed change in the scope of work is given effect to by the
19
respondents, it will block access to the Mall or at least, it would
narrow down the entry to the Mall, thereby adversely impacting the
commercial interests of the petitioners, who have invested their hard-
earned money in purchasing commercial spaces in the Mall.
28 In the above context, it is to be noted that the official
respondents have taken a specific stand that even if the proposed new
merger plan of the two stages of the flyover is executed, it will not
narrow down the width of access to the Mall. It has been specifically
stated by the official respondents in their reply that the entry to the Mall
will remain 7 meters wide. In fact, respondent No.7, in his affidavit, has
specifically stated that, as on today, the promoters/builders of the Mall
have a 7 meters service road in front of the Mall, and even after the
change in scope of work, the Mall will still have a 7 meter wide service
lane. The apprehension of the petitioners in this regard has been taken
care of by the affidavit of respondent No.7.
29 Regarding the acquisition of additional land without
affecting the Mall, this Court has come across a copy of
communication dated 13.01.2025 addressed by respondent No.4 to
respondent No.5 whereby the said respondent has been asked to explore
the possibility of utilizing the empty land so that land acquisition is
restricted till 0+870 and it has been impressed upon the respondent that
the land acquisition at Palm Island Mall should be avoided, meaning
thereby that the official respondents are at pains to avoid a situation
whereby the promoters/builders of the Mall will have to either shift
20
their gate or to shift the outer boundary wall. This shows that there is
no mala fide intention on the part of the official respondents in
changing the scope of work. They have clearly spelt out the reasons for
change in the scope of work by stating that same has been necessitated
with a view to: (i) avoid loss to the Government exchequer to the tune
of Rs.50 crores, (ii) avoid in-operation of existing flyover for more than
two years, which would lead to traffic congestion for the local public of
Jammu,(iii) account for the strategic importance of existing flyover for
army troops, and the demolition would lead to inconvenience to them,
and (iv) mitigate the air and noise pollution that would ensue due to the
demolition of a portion of the existing flyover. Thus, the reasons for
change in the scope of work assigned by the official respondents, their
intention to avoid acquisition of any portion of the Mall, and their
assurance that there will be a 7 meter wide service lane for access to the
Mall go on to show that the interests of the petitioners are being taken
care of by the official respondents while changing the scope of work.
30 Apart from the above, the issue with regard to access to
the national highway is a matter within the domain of experts, and it
would not be open to the High Court to interfere in such decisions of
the experts by exercising of its powers of judicial review. The matters
with regard to the need for providing entry and exit points on national
highways or flyovers fall under the domain of specialists, and it has to
be presumed that such matters have been duly considered by the
experts. The High Court, while exercising its judicial review cannot act
an appellate authority over the expert decisions regarding the project
21
costs, provisions for entry/exit points, safety, technical feasibility of the
project, and the related aspects.
31 The petitioners in the instant case are claiming their
individual rights of entry and exit to the Mall, which are to be weighed
against the larger public interest. The petitioners demand that the
original merger plan of phase-I of the flyover should be adhered to and
that no change to the said plan should be made, as the proposed new
plan is going to affect their rights adversely. The respondents, on the
other hand, have offered cogent and convincing reasons for abandoning
the originally approved merger plan and coming up with a new merger
plan which is still under consideration. They have also assured
unhindered access to the Mall, with no change in the width of the entry
and exit points. Merely because it may have been more convenient for
the petitioners and their customers to access the Mall directly from the
Akhnoor Road under the earlier scheme does not give them a right to
resist any change in the plan of merger of the two stages of the flyover,
which would be beneficial for the larger public good. Merely because
the petitioners and their customers may face certain possible
inconvenience cannot form a basis for the official respondents to
abandon their proposed change in the scope of work and adhere to the
earlier approved merger scheme at the cost of larger public interests.
Any indulgence granted to the petitioners by this Court at this stage
may lead to similar demands from other quarters at multiple points
along the flyover, which is going to defeat the very object of the
project.
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32 The Supreme Court has time and again held that the Court
should be extremely loathe in interfering with the infrastructure
projects and keeping this in mind, the legislature has amended the
Specific Relief Act, 1963 by virtue of Act 18 of 2018, whereby clause
(ha) has been inserted in Section 41 of the said Act. The said clause
provides that no injunction can be granted if it would impede or delay
the progress or completion of any infrastructure project or interfere
with the continued provision of related facility related thereto or
services being the subject matter of such project. In M/S N.G. Projects
Limited vs M/S Vinod Kumar Jain, (2022) 6 SCC 127, the Supreme
Court has held that the High Court should keep in mind the intent of
the legislature that infrastructure projects should not be stayed. While
holding so, the Supreme Court referred to the legislative intent
contained in Act 18 of 2018 whereby clause (ha) was inserted in
Section 41 of the Specific Relief Act. The Court went on to observe
that the said provision should be kept in view even by the writ Court
while exercising its jurisdiction under Articles 226 of the Constitution
of India .
33 In view of the foregoing legal position, it would not be
open to this Court to direct the official respondents to abandon their
proposal to change the scope of work relating to merger of the two
stages of the flyover and to go ahead with the original merger plan
which, as already stated, would not only delay the project, but also
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cause a lot of inconvenience to the public and result in a loss to the
Government exchequer.
34 For the foregoing reasons, there is no merit in this writ
petition. The same is dismissed accordingly. The interim orders, if any,
shall stand vacated.
(Sanjay Dhar)
Judge
Jammu
07. 04.2025
whether order is reportable: Yes
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