Sub: 

Challenging the Order passed on 28.04.2023 by Hon’ble High Court of

Jammu & Kashmir and Ladakh at Srinagar in the matter of OWP No. 424/2018, CM
No. 1009/2023 c/w APOWP No. 11/2018, CM No.2932/2020, OWP No. 617/2018, IA
Nos. 1/2018 & 2/2018 titled as landowners of village Suthsoo & Ors Vs State of
J&K & Ors.
 

Kindly refer e office notes of e file no 80333.

1. RO Jammu/PD PIU Srinagar vide e office note # 15 dated 28.06.2023 ( e file no

80333) submitted the proposal to accept the judgement/ Order dated 28-04-
2023 of Division Bench of Hon'ble High Court of J&K at Srinagar in W.P.
No.424/2018 titled as Land Owners of Village Suthsoo and Ors. Vs. State of
J&K and Ors. directing a uniform increase of 20% on the awarded amount as
per J&K Land Acquisition 1990 having financial implication of Rs.234.15
Crores in the interests of NHAI and to save upon further bank interest
liability.

2. After perusal, the proposal was put up for approval of Competent Authority
to to accept the judgement/ Order dated 28-04-2023 of Division Bench of
Hon'ble High Court of J&K at Srinagar in W.P. No.424/2018. Subsequently,
Competent Authority vide note # 37 dated 28.07.2023 raised following
remark:

Pl. put up in EC.

3. Accordingly, the agenda was prepared and matter was placed before EC in its
575th meeting held on 16.08.2023 wherein the Executive committee discussed
and decide as under:

575.05 Construction of four lane ring road/bypass around Srinagar city

from Km.0.000 to Km 42.100(phase-I) on EPC mode in J&K to
accept the judgement order dated 28-04-2023 of Division Bench of
Hon’ble High Court of J&K at Srinagar in W.P.No. 424/2018
directing a uniform increase of 20 % on the awarded amount as per
J&K Land Acquisition 1990 having financial implication of
Rs.234.15 crores.
Decision As per revised recommendation of Member(P)-SC, EC decide to
challenge the order dated 28.04.2023 of Hon’ble Division Bench of
High Court.

4. Meanwhile, following was discussed in the Division and conveyed to PD

Srinagar:

In view of the limitation period to file the SLP, as intimated by RO/PD is up to

17.08.2023,  PD Srinagar has been asked to file the SLP within the limitation period.
 
PD PIU Srinagar has sent a letter dated 08.08.2023 to Advocate M/s.M.V.Kini & Co.  (C/P-
61).
 
In view of intervening holidays, it was also telephonically informed to PD PIU Srinagar
today to ensure that the SLP is filed within time limit and diary no.of the SLP may be
conveyed to NHAI HQ. for records.

5. Now, RO Jammu/PD Srinagar vide e office file no. 78699 dated 06.09.2023
submitted that “Due to paucity of time and as discussed with RO and HQ, this
office vide letter no.  PD/SGR/14021/01/2014/Court Case/170 dated
08.08.2023  requested M/s M.V.Kini & Co. to file an application/ SLP for challenging
the said Order before Hon’ble Supreme Court within period of limitation. EC in its
meeting held on 16.08.2023 decided to challenge the said Order before Hon’ble
Supreme Court. However, minutes of the same is yet to be issued. This office
examined the draft affidavit and incorporated the necessary corrections and requested
legal firm to file the SLP at the earliest. Accordingly, the SLP has been filed on
14.08.2023 under Diary no. 33251 of 2023. In case of any amendments in SLP/
application, the same shall be incorporated during filing of rejoinder.”

6. In view of above, file may be forwarded to Legal Division for vetting of the
filed SLP on 14.08.2023 under Diary no. 33251 of 2023 before seeking post
facto approval of Competent Authority.
.     
6.      Opinion of M.V. Kini Law Firm:
“Thus in view of aforesaid facts, it may been seen that the Hon'ble Division Bench despite
noting the flaw in land acquisition process, particularly acquisition by the Indenting
Department for a Central Project through State Act and also that other phases of the said
Ring Road would be acquired under the National Highways Act 1956 i.e. Central Act has not
set aside the acquisition process and has taken due cognizance of the importance of the
project and therefore, in our view NHAI should not challenge the judgment. The judgment
endeavors to strike a fine balance between concerned of the land-losers and importance of
infrastructure Project. If, however, upon due estimation NHAI is of the view that a 20%
increase in cost of acquisition as compared to possibility of acquisition and compensation for
Phase -I under Central Act, would make project unviable, the same may be communicated to
us and we would prepare a challenge to said judgment in the Supreme Court of India by way
of Special Leave Petition. The said comparative cost estimation would be a possible ground
to challenge the said Judgment.”
 
7.      Comments of LA Division:
7.1    The Hon’ble High Court in its order observed that Srinagar Ring Road is a part of
National Highway No. 1A, hence provisions of Section 3 of National Highways Act, 1956
should be followed while acquiring the land as National Highways Act,1956 is applicable to
whole of India. It is settled position that in the National Highways Act, 1956 land
compensation is determined as per Schedule I to IV of RFCTLARR Act, 1956 (Central Act), but
this act is came into in operation on 30.10.2019 in the UTs of Jammu & Kashmir i.e, when
Jammu & Kashmir Reorganization Act, 2019 was enforced. At that time nor RFCTLARR Act,
2013 neither Land Acquisition Act, 1894 was applicable in the State of Jammu & Kashmir
therefore, land compensation was determined according to the provisions of State Land
Acquisition Act, 1990.
7.2    However, Hon’ble High Court considered that NHAI has not followed the due process
of law i.e, provisions of Section 3 of National Highways Act, 1956 therefore Court enhanced
the compensation payable to the land loosers by 20% in the ends of justice and as a sort of
penalty on NHAI for not following the due process of law.
7.3    On pre pages it is mentioned that if acquisition is made as per the NH Act, 1956 then
financial liability will increase to the tune of 7,000/- crores. Hence, considering the above
facts, it is recommended to accept the order of Hon’ble High Court of Jammu & Kashmir.
Further, the payment of 20% additional enhanced compensation should not be made in
concluded/closed cases.
7.4    The proposal given at para 7.3 may be submitted for the kind approval of Competent
Authority. However before submitting the file to Competent Authority, comments of Legal
Division may also be obtained.

Submitted please.
 
 

10/07/2023 03:36 PM

विमल|VIMAL
उप महाप्रबंधक (एलए)|DEPUTY GENERAL MANAGER (LA)
Note # 28
Submitted for  onwards submission for the Comments of Legal Division before submission
the  proposal given at para 7.3 of above note #27  for the approval of the Competent
Authority,

14/07/2023 01:54 PM
डॉ. प्रकाश|DR. PRAKASH
महाप्रबंधक (आरएससी)|GENERAL MANAGER (RSC)
Note # 29
 
14/07/2023 03:02 PM

चंदन कुमार सिन्हा|CHANDAN KUMAR SINHA

मुख्य महाप्रबंधक (एलए)|CHIEF GENERAL MANAGER (LA)
Note # 30
 

14/07/2023 03:44 PM
पवन कुमार|PAWAN KUMAR
मुख्य महाप्रबंधक (विधिक)|CHIEF GENERAL MANAGER (LEGAL)
Note # 31
Ref: notes on pre-pages.
 
     The matter has been perused and it is observed that NHAI has legal remedy to
challenge the Hon'ble High Court of J&K order in Supreme Court. However, the
observations of LA Division on previous note appears to be reasonable and in the interest
of NHAI. Hence, the Division may take administrative decision in the matter and file may
be forwarded to J&K Division.

14/07/2023 04:11 PM
विपिन कुमार|VIPIN KUMAR
सलाहकार (विधिक)|ADVISOR (LEGAL)
Note # 32
 

17/07/2023 12:15 PM
पवन कुमार|PAWAN KUMAR
मख्
ु य महाप्रबंधक (विधिक)|CHIEF GENERAL MANAGER (LEGAL)
Note # 33
 

17/07/2023 09:44 PM
अमरें द्र कुमार|AMARENDRA KUMAR
मुख्य महाप्रबंधक (तकनीक)|CHIEF GENERAL MANAGER (TECH)
Note # 34
 
(1)  Kindly refer to Note # 10  of PD PIU Srinagar, instead of Note # 13.

 
(2)  If NHAI accepts the judgment dated 28.04.2023 of Division bench of Hon'ble
High Court of Jammu & Kashmir at Srinagar, the additional financial implication
would be Rs.234.15 Crore, as mentioned in Para-7 of Note # 10 .

 
(3)   The Concern/ proposal of RO Jammu may be seen in Note # 14. It is also
stated that The limiting period for filing the SLP is expiring on 17.08.2023.
 
(4)  The discussion/opinion of Legal Counsel M/s.M.V.Kini & Co. may be seen
at (C/P-31-32).  The Legal Counsel has stated in one of the Para as under:

 
"The Hon'ble Court, however, has not set aside the acquisition already undertaken
by NHAI through State Government officials which would have entailed huge delay
and cost escalation in case if new notification under Section 3A of the NH Act 1956
was required to be issued. The Hon'ble Court has further allowed a uniform
increase of 20% on the decided amount which in our view is most cost effective
option as well as since it does not require any redetermination, the process would
be faster. You may recall that NHAI’s prime concern during the case was to
avoid any stay in the execution of works. It is also a fact that a compensation
amount under the State Act, 1990 even after including 20% compensation on
amount determined would be on lower side then, if entire compensation is
worked out under the NH Act, 1956."
 
“Thus in view of aforesaid facts, it may been seen that the Hon'ble Division Bench
despite noting the flaw in land acquisition process, particularly acquisition by the
Indenting Department for a Central Project through State Act and also that other
phases of the said Ring Road would be acquired under the National Highways Act
1956 i.e. Central Act has not set aside the acquisition process and has taken due
cognizance of the importance of the project and therefore, in our view NHAI
should not challenge the judgment.  The judgment endeavors to strike a fine
balance between concerned of the land-losers and importance of
infrastructure Project. If, however, upon due estimation NHAI is of the view that
a 20% increase in cost of acquisition as compared to possibility of acquisition and
compensation for Phase -I under Central Act, would make project unviable, the
same may be communicated to us and we would prepare a challenge to said
judgment in the Supreme Court of India by way of Special Leave Petition. The said
comparative cost estimation would be a possible ground to challenge the said
Judgment.
 
It is likely that the Petitioner/land-losers would also challenge the said
Judgment.
 
If NHAI is of the considered view that Appeal needs to be challenged, the same
may be communicated to us.”
 
(5)  The Opinion of LA division may be seen in Note # 27 -29. The LA division
in Para-7.3 of Note # 27 has opined to accept the order of Hon’ble High Court
of Jammu & Kashmir. Further, the payment of 20% additional enhanced
compensation should not be made in concluded/closed cases.
 
(6) The opinion of Legal Division may be seen in Note # 31 -32. The legal Division
has stated that NHAI has legal remedy to challenge the Hon'ble High Court of J&K
order in Supreme Court. However, the observations of LA Division on previous
note appears to be reasonable and in the interest of NHAI. Hence, the Division
may take administrative decision in the matter.

 
(7)  The additional financial implication of Rs.7239.49 Crores worked out in Note
# 13 is based on presumption basis and not based on the Hon'ble Court Order.  The
additional financial implication as per Hon'ble Court Order would be Rs.234.15
Crore in the instant project.

 
(8)  It is felt that the likely financial implication for LA in other projects of NHAI
shall be assessed as and when the Court Order comes in those cases in future and
may not be a ground for decision in the instant matter.
 
      In view of above, based on the opinion of Legal Counsel, LA Division and Legal
Division, we may consider to accept the final Judgment/ Order dated 28-04-2023
of Hon'ble Division Bench of High Court of Jammu & Kashmir at Srinagar in the
interests of NHAI and to save upon further bank interest liability.
 
कृपया अवलोकन एवं अनुमोदन हे तु प्रस्तुत है ।
 
 

22/07/2023 08:26 PM

प्रशांत एन गावसाने|PRASHANT N GAWASANE

महाप्रबंधक (जम्मू एवं कश्मीर)|GENERAL MANAGER (J&K)
Note # 35
As above, recommended for approval of Chairman to accept the order of Hon HC
Srinagar (allowed a uniform increase of 20% on the awarded amount as per State ACt
having implication of Rs234.15 Cr though demand was for award as per NH act which is on
much higher side)  as per opinion of Legal Counsel, LA Division and Legal Division.  

25/07/2023 06:48 PM
 अमरें द्र कुमार|AMARENDRA KUMAR
मख्
ु य महाप्रबंधक (तकनीक)|CHIEF GENERAL MANAGER (TECH)
Note # 36
 

26/07/2023 11:34 AM
सद
ु ीप चौधरी|SUDIP CHAUDHURY
सदस्य (परियोजना)|MEMBER (PROJECT)
Note # 37
 
Pl. put up in EC.

28/07/2023 07:11 PM
संतोष कुमार यादव|SANTOSH KUMAR YADAV
अध्यक्ष|CHAIRMAN
Note # 38
 

28/07/2023 07:38 PM
सद
ु ीप चौधरी|SUDIP CHAUDHURY
सदस्य (परियोजना)|MEMBER (PROJECT)
Note # 39
 

29/07/2023 03:58 PM
अमरें द्र कुमार|AMARENDRA KUMAR
मुख्य महाप्रबंधक (तकनीक)|CHIEF GENERAL MANAGER (TECH)
Note # 40
 

29/07/2023 06:14 PM

प्रशांत एन गावसाने|PRASHANT N GAWASANE

महाप्रबंधक (जम्मू एवं कश्मीर)|GENERAL MANAGER (J&K)
Note # 41
In viewof above, Draft EC agenda(DFA/86532) has been attempted and it is
placed below for kind perusal and approval please.

05/08/2023 10:17 AM
विश्वास शर्मा|VISHWAS SHARMA
उप -प्रबंधक|DY. MGR
Note # 42
संशोधित ड्राफ्ट EC Agenda (DFA/86532 Ver.1.1) अनुमोदन हे तु इसके साथ संलग्न है ।
 

05/08/2023 11:00 PM

प्रशांत एन गावसाने|PRASHANT N GAWASANE

महाप्रबंधक (जम्मू एवं कश्मीर)|GENERAL MANAGER (J&K)
Note # 43
As matter is time bound & limitation of change is upto 16.08.2023, we like to lay
this agenda to lay  in todays EC if permitted. 

08/08/2023 10:32 AM
अमरें द्र कुमार|AMARENDRA KUMAR
मुख्य महाप्रबंधक (तकनीक)|CHIEF GENERAL MANAGER (TECH)
Note # 44
 

09/08/2023 07:17 PM
सद
ु ीप चौधरी|SUDIP CHAUDHURY
सदस्य (परियोजना)|MEMBER (PROJECT)
Note # 45
 

10/08/2023 10:54 AM
अमरें द्र कुमार|AMARENDRA KUMAR
मुख्य महाप्रबंधक (तकनीक)|CHIEF GENERAL MANAGER (TECH)
Note # 46
 

10/08/2023 11:56 AM
 प्रशांत एन गावसाने|PRASHANT N GAWASANE
महाप्रबंधक (एचपी)|GENERAL MANAGER (HP)
Note # 47
The matter was discussed with CGM(T) and in view of the limitation period to file
the SLP, as intimated by RO/PD is up to 17.08.2023 , PD Srinagar has been asked to
file the SLP within the limitation period.
 
PD PIU Srinagar has sent a letter dated 08.08.2023 to Advocate M/s.M.V.Kini &
Co. (C/P-61).
 
In view of intervening holidays, it was also telephonically informed to PD PIU
Srinagar today to ensure that the SLP is filed within time limit and diary no.of the
SLP may be conveyed to NHAI HQ. for records.
 

10/08/2023 12:09 PM

प्रशांत एन गावसाने|PRASHANT N GAWASANE

महाप्रबंधक (जम्मू एवं कश्मीर)|GENERAL MANAGER (J&K)
Note # 48
The above matter was placed before EC and the decision of EC was conveyed vide
letter dated 25.08.2023  to RO Jammu.