Nigeena Begum & anr vs State of J&K & ors.

Instant appeal under Clause 12 of the Letters Patent is directed against the judgment dated 16th July, 2013 rendered in the case of ""Nigeena &

anr. Vs. State of J&K & Ors.

The dispute pertains to re-alignment of Dehgam Khul, Handwara, which happened due to deepening and widening of the khul carried out in the

year 2009-10. Allegedly alignment has been changed without any permission.

The private respondents earlier had filed a suit before the Court of Sub Judge, Kupwara, which, according to the learned counsel for the parties,

stand dismissed for want of prosecution.

Learned Single Judge after taking note of the stand of the parties in the suit proceedings and then in the affidavit filed in this Court, directed

Executive Engineer to file fresh affidavit in the light of order of the Writ Court dated 08.11.2012. Paragraph 8 and 10 of the said affidavit have

been quoted in the impugned judgment, which, for facility of reference, are quoted here-under:

8/ That the embankments on the both sides of the canal are going to be strengthened by the construction of L/Wall which stands allotted and due

for start of construction after the pending decision of the case by the Hon''ble Court.

10/ That regarding the directions of the Hon''ble High Court passed on 03.07.2013 to the Respondent Department, it is stated that the stand taken

by the undersigned is as per the present situation at site and is based on facts. The stand taken by the then Executive Engineer, Mr. S. K. Khurdi

(now retired) at that time in the Hon''ble Court appears to be at variance with the stand taken by him in the statement filed before the Court of Sub

Judge, Handwara in civil original suit titled Mst. Asha versus State and orders is better known to him.

The Executive Engineer had undertaken that the construction of L/Wall will be completed by the end of October, 2013. Taking note of the

same, for protecting interests of the appellants, petition has been disposed of with the direction to the respondent department to construct the

L/Wall by the end of October, 2013 with a condition that in case construction of L/Wall is not completed within the stipulated period, then the

Dehgam Khul, Handwara, shall be restored to its original position/alignment at RD 1400-1500 meters by end of November, 2013.

According to learned GA, appearing for respondents Nos.1 to 5, all steps were taken for ensuring construction of L/Wall above referred but for

the pendency of LPA and consequent stay order issued on 30.09.2013.

Learned counsel for the appellants was pointedly asked to convince the Court as to how interests of the appellants are getting adversely

affected, he could not give any convincing reply. Re-alignment, in effect, suggest that the curves have been removed for smooth flow of water. The

village community has not projected any grievance. It is only the appellants who have come up with a grievance. Apparently, no damage appears

to have been caused to the appellants'' property in any manner but despite that right of the appellants has been protected by the learned Single

Judge by providing that the disposal of the writ petition shall not come in the way of appellants for seeking damages from the respondents in

accordance with law. That course shall be still available to the appellants.

Viewed from any angle, we do not find any error of law or fact so as to persuade us to interfere with the judgment impugned. The appeal is

found to be without merit, as such, dismissed. The direction issued by the learned Single Judge for construction of L/Wall by the end of October,

2013, is now extended. The said construction shall be completed within six months from today otherwise, as directed by the learned Writ Court,

Dehgam Khul shall have to be restored to its original position/alignment at RD 1400-1500 meters.