Jammu & Kashmir High Court - Srinagar BenchInhabitants Of Township Dangiwacha vs State And Ors on 12 October, 2017HIGH 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 WITHMR. 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.                89Govt. Degree College for Women, Baramulla.          115Govt. Degree College (Boys), Sopore.                 86Govt. Degree College for Women, Sopore               60Total                                 350"

   06/       It has also been stated that 62 villages are located around thearea 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            h1 11th Class       119      200           134        240          2732 12th Class       96       287           99         254          24907/   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 ofQaziabad, 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 underArticle 226of 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 underArticle 226of 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 ofDirectorate 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