Questions On Whether Infrastructural Project Would Be Technically Feasible Or Serve Larger Public Interest Are Beyond Scope Of Judicial Review: J&K HC

The Jammu and Kashmir High Court held that merits of the contention raised by the petitioner as to the feasibility or viability of the infrastructural project by the government cannot be looked into by this court as it is not an appellate authority over the expert decisions regarding the project costs, provisions for entry/exit points, safety, technical feasibility of the project, and the related aspects.

The petitioner had challenged the proposed change of scope of work that has been launched by the authorities on the ground that same was not technically feasible, as it will block the entry to the petitioner's Mall, cause traffic congestion, and pose safety risks for the commuters.

A bench of Justices Sanjay Dhar observed that 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.

The court noted that the official respondents have assured the petitioners about the unhindered access to the Mall, with no change in the width of the entry and exit points.

The court said that the contention of petitioners that the respondent-Highway authority was not authorized to change the scope of the work once the Detailed Project Report (DPR) was already approved was also without any substance.

The court observed that 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.

The court held that it was clear from the terms of the contract that National Highway Authority of India has the power to require the contractor to make modifications to the works. The contractors were thereafter required to submit a proposal for the said change within 15 days from the receipt of change of scope notice.

The court said that the respondents 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.

It said that it was not open to this Court to direct the official respondents to abandon their proposal to change the scope of work and to go ahead with the original merger plan which, as already stated, would not only delay the project, but also cause a lot of inconvenience to the public and result in a loss to the Government exchequer.

BACKGROUND

The Petitioners Nos. 2 to 12, who are members of Petitioner No.1 which is an association of commercial property owners in Palm Island Mall, Canal Road, Jammu have approached the court seeking directions to ensure that the construction of a 4-lane flyover on the Jammu-Akhnoor Road (NH-144A), from be carried out strictly in line with the approved Detailed Project Report (DPR) and its technical specifications.

The petitioner submitted that that the authorities be restrained from deviating from the sanctioned design, particularly from reducing the road width in front of Palm Island Mall or constructing a blind wall that could obstruct access to the complex.

According to the petitioners, the Palm Island Mall was constructed with all statutory approvals, including a sanctioned building plan that includes a 40-feet wide entry road from Akhnoor Road. This width is in compliance with the requirements laid out in both the Master Plan 2021 and 2032, which mandate a minimum 15-meter road width for commercial buildings.

According to the petitioners after the mall became functional, the National Highways & Infrastructure Development Corporation Ltd. (NHIDCL) initiated road-widening work on the same stretch of Akhnoor Road.

However, during construction, petitioners learned that the contractor had allegedly been instructed to alter the design, resulting in the flyover now landing prematurely at the 1.000 km mark, instead of the planned 1.350 km. This new alignment would bring down the height just after the Canal Head rotary, creating a blind wall and shrinking the road width in front of the Mall to only 14 feet, thus severely affecting access and visibility.

The petitioners contend that this unauthorized deviation from the approved DPR was done arbitrarily and with mala fide intent, and would not only hamper the Mall's commercial viability but also violate planning norms.

APPEARANCE:

Vikram Sharma Sr. Advocate with Mr. Sachin Dev Singh Advocate. Mr. S. Sanpreet Singh and Mr. Zaheer Abbas Khan Advocate, Advocate For Petitioner

Rahul Pant Sr. Advocate with Mr. Anirudh Sharma Advocate Mr. Sunny Mahajan AdvocateFor Respondents

Case-Title: Palm Island Space Owners Welfare Association & Ors vs Union of India and others

Citation: 2025 LiveLaw (JKL) 142

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