HIGH COURT OF JAMMU AND KASHMIR At SRINAGAR LPA No. 261 of 2007 Haji Mohammad Ishaq Haji Tahir Hussain & ors petitioner State of J&K & ors. respondents !Mr. M. A. Qayoom, Advocate Mr. G. A. Lone, Advocate ^ Mr. Hashim Hussain, Dy. AG Mr. M. Y. Bhat, Advocate Mr. G. N. Shaheen, Advocate Hon'ble Mr. Justice Barin Ghosh, Chief Justice Hon'ble Mr. Justice M. Yaqoob Mir, Judge Date: 16/03/2009 : J U D G M E N T:
Per Barim Ghosh, CJ (Oral)
Villagers of certain villages situated within the district of Kargil
represented for creation of
a new block to bring those villages within the said new block. They represented
that the block in
which they have been clubbed is inconvenient for them, for, they have to travel
a
2 long distance to reach to the block headquarter where they are required to
discharge many a
duties and functions in connection with the lands held by them in the villages.
This representation
was being considered by the political executive when the location of the
proposed headquarters of
the new block, if sanctioned to be created, was also being considered.
Ultimately, a political
decision was taken to grant to the villagers of those villages a new block. The
said decision was
communicated by a Government decision dated July 6, 2005 when it was stated that
the
headquarters of the said newly constituted block shall be at Rahimthang.
In the writ petition field by three petitioners in their personal capacity, they
contended that the
executive decision of fixing the headquarter of the new block, flowing from the
political decision to
create the said new block, was erroneous, improper, arbitrary and capricious,
inasmuch as
Rahimthang as the headquarters for the new block is not only inconvenient for
the villagers, but the
decision to select Rahimthang as the headquarters of the said new block is also
contrary to the
conscious decision of the State to locate all the State facilities in the
village of Trespoon where not
only the hospital is situate but also the sheep breeding farm has come up
alongwith post office and
other facilities. It was stated that village Trespoon was
3 selected for all those facilities in view of the fact that the said village
has become a halqa
Panchayat which suggests that a large number of
People are residing at the said village. It was suggested that there is no just
reason why ignoring
Trespoon, Rahimthang was chosen. In the counter affidavit filed by the State,
while opposing the
writ petition, it almost took a stand that the choice of Rahimthang having been
made by the
executive, the same is not interfereable and not, at least, at the instance of
the writ petitioners. In
other words, they contended that whatever they had done is beyond question and
in particular by
the petitioners. The private respondents, who were parties to the writ petition
contended that taking
into consideration the reasons as were then taken note of, it was decided to
have the headquarters of
the new block at Rahimthang. While the writ petition was pending, a corrigendum
was issued on
July 22, 2005 replacing the words “HQ. Rahimthang” to “HQ. Rahimthang-
Marpothang” in the
original notification dated July 6, 2005. On May 19, 2006 on the writ petition,
an order of status
quo was passed. Soon thereafter, by an order dated July 10, 2006, the said
corrigendum was
cancelled. The above actions led to filing of a fresh writ petition by the
petitioners challenging the
corrigendum as well as the rescission thereof. In that writ petition, they added
one more private
respondent who was then a Minister of
4the State. It was contended that it was at his instance Rahimthang was decided.
They also filed a
contempt petition, contending that the order of status quo has been breached by
issuing the order
rescinding the corrigendum.
The learned Single Judge, who dealt with the writ petitions, dismissed the same
and also disposed
of the contempt petition, principally, on the ground that the bases for fixing
headquarter is based on
consideration of executive requirement and, accordingly, executive exigency and
preference
outweighs anything else. While doing so, the learned Judge took notice of the
judgment of the
Hon’ble Supreme Court rendered in the case of Union of India v. Kannadapara
Sanghatanegala
Okkuta & Kannadigara, 2002(10) SCC 226. The learned Judge also took note of a
judgment of the
Hon’ble Supreme Court rendered in the case of Delhi Science Forum v. Union of
India, 1996 (2)
SCC 405. While the later case dealt with policy decision, with which we are not
concerned here
inasmuch as fixation of headquarter in no certain terms can be said to be a
political decision or a
policy decision, but the first mentioned case of the Hon’ble Supreme Court may
apply. At the same
time, however, the same applies to headquarters of a venture with which public
as such has no
direct or indirect interaction. In other words, when the
5headquarter of an organization with which the people have generally no scope of
interaction, and
is purely for meeting the requirement of administration, i.e., headquarter of a
railway, is to be set
up, the decision of the organization alone to locate the same should be taken
note of and, in that
connection, that decision itself will hold, for, it is the convenience of the
organization alone that is
to be taken note of. However, when the headquarter of a block is to be located,
where the people
will interact and will be interacted, the decision to locate the same must be
taken in the backdrop of
convenience of the people also for whose benefit the political decision to
create a new block has
been taken. The executive, while implementing such a political decision, cannot
escape by saying
that it has taken the decision. It would be required to show that, in the facts
and circumstances of
the case, the decision taken was a reasonable decision.
It is well settled in law that the writ Court does not deal with the decision
rendered by an inferior
authority. The writ Court also does not sit in appeal on a decision rendered by
an inferior authority.
The writ Court is only to see whether the decision making process adopted was
fair and reasonable.
In the instant case, the process to select Rahimthang as the headquarter of the
new block has not
come on record. No record suggesting that there had been an application of
6mind to ascertain public convenience or inconvenience was produced before the
writ Court. This
Court gave an opportunity to produce the same. The records have been produced
but they do not
contain anything from where it can be gathered that any effort had been made,
while fixing the
headquarter of the new block at Rahimthang, to ascertain public convenience and
inconvenience.
The conclusion, therefore, would be that the decision making process of
selecting Rahimthang as
the headquarter of the new block was so faulty that the decision rendered by
adopting such
procedure is vitiated as an illegal exercise of power and authority.
Learned counsel for the State submitted that the writ petitions, at the
instance of three
petitioners not residing in the village Rahimthang, are not maintainable. He
submitted that the writ
petitions were not representative actions, and, accordingly, people of the new
block were not
interested in the manner interest had been shown by the petitioners. It was
submitted that in the
event the grievance of the petitioners are to be taken note of, then in future
people residing in other
villages, where also the headquarter has not been set up, would come and express
their grievance.
The political decision to give a new block has been taken to benefit each and
every resident of
those villages which have been clubbed together under the said block. The
7said decision is for the benefit of each of such villagers. Each of them has
equal right of being
treated fairly. Each of them has a right to contend that he has not been fairly
treated in the matter of
selecting the headquarter. It is such right the petitioners have invoked in the
said writ petitions. It
cannot be said that as individuals they do not have any right to approach the
Court and they were
required to approach the Court only as representatives of other villagers
residing in the locality.
The answer which the petitioners expect from the State would have been the
answer to any
other person as that of the petitioners challenging or questioning the decision
to have the
headquarter of the new block at Rahimthang. The answer in all such cases would
have been
establishment on facts that an effort was made to ascertain public element in
choosing the site of
the headquarter. That being absent in the instant case, in all other cases that
may come in future, the
State will face the same fate.
Learned counsel for the private respondents, namely, villagers who reside
in the village
Rahimthang, submitted that at the time proposal was made for carving out a new
block for the
villages in question, considering the situation of Rahimthang, it was decided
that Rahimthang
would be the best located place for having the
8 headquarter of the new block. It is true that in a letter it was so indicated,
but while doing so,
surprisingly, one of the halqa panchayats, which formed part of the new block,
had been totally left
out. The said state of affair clearly demonstrates that while writing the said
letter, the manner in
which the said officer, i.e., the writer thereof, was obliged to discharge his
duties owing to the
villagers of the said villages, did not discharge the same and, accordingly,
that letter cannot be said
to be a piece of evidence suggesting that the executive discharged its
obligation in selecting
Rahimthang as headquarter of the said block in public interest or by taking into
account public
elements. It is true that before the decision was taken, a report was submitted
where it was stated
that Rahimthang be the headquarter of the new block to be created, but the fact
remains that the
report did not suggest why Rahimthang and not any other village shall not be
selected for
establishing the block headquarters.
The conclusion, therefore, would be that the decision to establish
headquarter of the new
block at Rahimthang is a product of caprice based on ipse dixit of the officers
of the State and,
therefore, cannot stand the test of law.
Learned counsel for the private respondents cited a Single Bench judgment
rendered in
Bijita Saha v. State of Tripura, AIR
9. 2006 Guahati 61, for the preposition that the writ Court cannot direct change
of location of a
hospital to be set up by the State. We do not think that the same can be an
absolute preposition. If
on the basis of ipse dixit and mala fide on the part of the officers of the
State, a benefit by way of a
hospital is to be given to the people, but is given to a class of people,
ignoring the mass, the writ
Court will not backtrack from issuing appropriate writs. The other judgment
cited by the said
learned counsel was rendered in the case of Uttaranchal Training and Employment
Karamchari
Samgharsh Samiti v. State of Urraranchal, reported in AIR 2005 Uttaranchal 58,
for the
preposition that decision of location of a Government office rests in the
Government and the writ
Court has no jurisdiction to interfere therewith. In that case, the question was
shifting of the
Directorate of Employment and Training from Haldwani. Though such an office of
the Government
is established for the benefit of the people but the people have no direct
interaction therewith;
whereas headquarter of a block is established only for the purpose of
interacting with and by the
people and not for any other purpose.
In the circumstances, these appeals are allowed and the judgment under order and
appeal is set
aside. The writ petitions are allowed but, at the same time, no further
steps be taken in the
10contempt petition and the same be deemed to have been closed. The Government
is directed to
ascertain, within a period of six months from today, in such manner and mode as
it may deem fit
and proper, which location of the headquarter for the said new block would best
suit the public
purpose for which the said block has been carved out and thereupon to install,
within a period of
further six months therefrom, the headquarter of the said block at such
location. It goes without
saying, that within a period of six months from today, the Government of its
own, would issue
appropriate notification, if necessary, altering the headquarter of the said
block upon consideration
of what has been directed above. It is made clear that until such time such new
notification is
issued, it shall be perfectly valid and justified for the Government to operate
the headquarters for
the said newly created block at and from where the same is operating at present.
(M. Yaqoob Mir) (Barin Ghosh)
Judge Chief
Justice
Srinagar
16.03.2009
A. H. Khan, JR