“Courts Are Not Equipped to Decide Upon the Viability and Feasibility of a Particular Project”: Jammu & Kashmir High Court Dismisses Petition Against Deviation from Approved Flyover Design on
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar dismissed a writ petition challenging deviations from the approved Detailed Project Report (DPR) in the construction of a 4-lane flyover on NH-144A in Jammu. The Court held that “Courts are not at all equipped to decide upon the viability and feasibility of the particular project” and that decisions concerning public infrastructure projects lie within the domain of experts. The Court found no mala fides or violation of law in the respondents’ decision to modify the scope of work and dismissed the petition seeking adherence to the original DPR specifications.
The petition was filed by members of the Palm Island Space Owners Welfare Association, who are owners of commercial spaces in the Palm Island Mall situated along the Jammu-Akhnoor Road section of NH-144A. They sought directions to the official respondents, including the National Highways & Infrastructure Development Corporation Ltd. (NHIDCL), to construct the flyover strictly in accordance with the approved DPR and technical specifications. The petitioners also sought to restrain the respondents from reducing the width of the road in front of the mall and constructing a “blind wall” that would allegedly obstruct access and visibility.
According to the petitioners, the mall was constructed with proper approvals and became operational in 2018, featuring multiple commercial amenities including multiplexes, restaurants, shopping stores, and office spaces. The building plan included a 40-foot-wide access road from the Akhnoor Road side. The Master Plans of 2021 and 2032 stipulated a minimum road width of 15 meters for commercial complexes.
The project for a 4-lane flyover from 4th Tawi Bridge to Canal Head was undertaken by NHIDCL pursuant to an e-tender dated 10.08.2021. The contract, awarded to M/s Maan Builders (Respondent No. 5) via letter dated 24.09.2022, detailed a 1.350 km flyover designed to merge with an existing flyover at the 1.350 km mark. A ramp was to connect at 1.050 km between pillars 6 and 7 to facilitate this integration.
The petitioners contended that the flyover was now being constructed with a reduced pillar height beyond Canal Head Chowk and that it would prematurely descend at the 1.000 km mark, rather than the approved 1.350 km. They alleged that this deviation from the DPR would narrow the entry road to the mall to 14 feet, affecting its commercial viability, visibility, and public access. The deviation, they claimed, was made arbitrarily, unlawfully, and without technical justification.
The official respondents (Respondent Nos. 1, 2, 6, 7, and 8) stated that NH-144A from 4th Tawi Bridge to Hanuman Chowk was entrusted to NHIDCL in 2015. The project was split into four packages, with the Canal Head to Ganesh Vihar stretch forming Package-II and the 4th Tawi Bridge to Canal Head stretch as Package-I. While Package-II was awarded in March 2018 and completed in October 2022, Package-I remained in the tendering stage at that time.
Initially, the DPR proposed a merger of Package-I with Package-II at 1.350 km. However, as Package-II was nearing completion, implementing this plan would have necessitated demolition of 450 meters of the newly constructed Package-II flyover. According to the respondents, such demolition would have caused severe traffic disruption, public inconvenience, and financial losses estimated at ₹50 crores.
The respondents submitted that a modified plan was under consideration to end Package-I at 1.000 km, with new ramps connecting it to the existing infrastructure. They stated that a fresh design had been sought and the proposed changes, including potential land acquisition, would not obstruct or reduce access to the mall. A 7-meter-wide service road would remain in front of the mall.
Respondent No. 5, the contractor, supported the petitioners’ concerns, asserting that the deviation was being implemented under pressure, despite objections submitted on 24.07.2024. The contractor argued that the deviations could compromise the safety, aesthetics, and functionality of the flyover, which the contractor is required to maintain for ten years post-completion.
Respondent No. 3, the authority that prepared the DPR, stated that the report was based on field surveys, engineering design, and land availability, but was not binding. It maintained that the flyover must serve broader public interests rather than individual beneficiaries.
Respondent No. 7, through an additional affidavit, stated that the flyover project was being executed in four stages due to practical constraints in land acquisition. It explained that the change in scope was necessitated by the completion of Package-II, and a full merger at 1.350 km would have delayed the project and obstructed military logistics. Respondent No. 7 further stated that the revised design would preserve the existing service road in front of the mall and that land acquisition would not obstruct mall access.
The respondents also submitted multiple internal communications and relied on contractual clauses allowing scope modification in public interest. They asserted that the mall promoters had failed to obtain required permissions under the Control of National Highways (Land and Traffic) Act, 2002, and that construction of such projects cannot be tailored to suit private commercial interests.
Justice Sanjay Dhar addressed the petitioners’ claim that changes to the approved DPR were impermissible. Referring to Articles 13.1 and 13.2 of the contract agreement, the Court recorded:
“The contract document specifically provides and gives authority to the official respondents to change the scope of work and allows the contractor to submit a proposal in this behalf.”
Rejecting the contention that the contractor could independently alter the work, the Court stated:
“The changed proposal can be put into execution only after the same is approved by the official respondents.”
On the technical feasibility of the revised merger plan, the Court noted: “The merits of the contention raised by the petitioners cannot be gone into by this Court... These are matters beyond the scope of judicial review.”
Quoting the Supreme Court’s judgment in Union of India v. Kushala Shetty (2011) 12 SCC 69, the Court observed:
“The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited.”
The Court stated that judicial review could only intervene in cases of “mala fides” or “blatant violations of law”, neither of which had been established.
Addressing the concern of restricted mall access, the Court recorded: “The official respondents have taken a specific stand that even if the proposed new merger plan... is executed, it will not narrow down the width of access to the Mall.”
The Court relied on Respondent No. 7’s affidavit stating: “The promoters/builders of the Mall have a 7 meters service road in front of the Mall, and even after the change in scope of work, the Mall will still have a 7 meter wide service lane.”
It also cited a communication dated 13.01.2025 directing the contractor to explore land acquisition alternatives to avoid affecting the mall’s boundary or gate.
The Court found no mala fides in the proposed changes and observed:
“They have clearly spelt out the reasons for change... (i) avoid loss to the Government exchequer to the tune of Rs.50 crores, (ii) avoid in-operation of existing flyover for more than two years, (iii) account for the strategic importance of existing flyover for army troops, and (iv) mitigate the air and noise pollution that would ensue due to demolition.”
The Court concluded that expert determinations regarding infrastructure alignment, entry/exit points, or safety considerations were not amenable to judicial review.
“The petitioners in the instant case are claiming their individual rights... which are to be weighed against the larger public interest.”
It recorded: “Any indulgence granted to the petitioners by this Court at this stage may lead to similar demands from other quarters... which is going to defeat the very object of the project.”
Citing Section 41(ha) of the Specific Relief Act, 1963, as amended by Act 18 of 2018, the Court stated: “No injunction can be granted if it would impede or delay the progress or completion of any infrastructure project.”
The Court referred to M/S N.G. Projects Ltd. v. Vinod Kumar Jain (2022) 6 SCC 127, and held that infrastructure projects must not be delayed by court orders unless there is manifest illegality.
The Court issued the following directive:
“In view of the foregoing legal position, it would not be open to this Court to direct the official respondents to abandon their proposal to change the scope of work relating to merger of the two stages of the flyover 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.”
“For the foregoing reasons, there is no merit in this writ petition. The same is dismissed accordingly.”
It further directed: “The interim orders, if any, shall stand vacated.”
Advocates Representing the Parties
For the Petitioners: Mr. Vikram Sharma, Senior Advocate with Mr. Sachin Dev Singh, Advocate; Mr. S. Sanpreet Singh and Mr. Zaheer Abbas Khan, Advocates
For the Respondents: Mr. Rahul Pant, Senior Advocate with Mr. Anirudh Sharma, Advocate and Mr. Sunny Mahajan, Advocate; Mr. Mohd Aleem Beg, Advocate with Mr. Harmit K. Mehta, Advocate
Case Title: Palm Island Space Owners Welfare Association & Ors. v. Union of India & Ors.
Case Number: WP(C) No. 1588/2024
Bench: Justice Sanjay Dhar
[Read/Download order]
