As per case facts, petitioners filed a writ petition challenging the construction of deep box cuts on the NH-244, citing expert geological reports that recommended realignment or detouring due to ...
WP(C) No. 1243/2023
Page 1 of 32
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Uploaded on: 12.03.2026
WP(C) No. 1243/2023
1. Surinder Singh, aged 44 years, S/o Sh. Trilok Singh, R/o
Village Bashat, Tehsil Chenani, District Udhampur.
2. Som Raj, aged 49 years, S/o Prithvi Gir, R/o Katwait,
Bachhal, Sudhmahadev, Udhampur.
3. Sharief Khan, aged 55 years, S/o Sh. Bashir Khan, R/o
Bashat, District Udhampur.
4. Sudesh Chander, aged 43 years, S/o Sh. Romal Chand,
R/o Sarar, Bap, Udhampur.
…..Petitioners
Through: Mr. Yasser Ejaz Tak, Advocate
Vs
1. Union of India,
Through Ministry for Service Transport and Highway Govt.
of India, New Delhi.
2. National Highway and Infrastructure,
Development Corporation Ltd.
Through its CMD, 3
rd Floor, PTI Building,
4- Parliament Street, New Delhi – 110001.
3. The Executive Director (P)
NHIDCL, H. No. 261, Sector-6,
Channi Himmat, Jammu.
4. General Manager (P),
PMU-Akhnoor,
NHIDCL, 333-F Shakti Nagar, Jammu – 180001.
5. Authority’s Engineer
TPF-Getinsa Euro Studios S.L. in association with
Segmental Consulting and Infrastructure Advisory Limited.
Project Office: Friends Colony Lane, Opp. BSF old Bridge,
Paloura, Jammu (J&K) 180001.
6. ECI-SRM Projects,
WP(C) No. 1243/2023
Page 2 of 32
Registered Office: 1-A, Hill View, Near Govt. H. S. S. Bahu
Fort, Jammu – 180006.
.….Respondents
Through: Mr. Sunny Mahajan, CGSC.
Mr. Rahul Pant, Sr. Advocate with
Mr. Anirudh Sharma, Advocate.
Mr. Basit Manzoor Keng, Advocate.
Coram : HON’BLE MR. JUSTICE RAHUL BHARTI , JUDGE
JUDGMENT
(12.03.2026)
01. This is a writ petition filed by four petitioners, all
claiming to be residents of different villages of district
Udhampur.
02. Before this Court comes to purported cause of action
leading the writ petitioners to join together and come up with
writ petition thereby seeking this Court to interject with
respect to an ongoing construction of a stretch of road falling
on Chenani – Sudhmahadev Section of NH-244 on the plea
that construction of High Gallas/Open Box Cut at three/four
locations of said stretch is against the
proposal/recommendations of the respondent No. 4 – General
Manager (P), PMU-Akhnoor and the respondent No. 5 –
Authority Engineer, TPF, warranting alternate alignments to
be resorted to, this Court needs first to refer to the Project
before coming to the stretches/sections with respect to which
originally approved and allotted course of construction is
alleged to be objectionable and vulnerable.
03. Chenani – Sudhmahadev is linked by NH -244 with
respect to the widening and upgradation of which a proposal
for 2-Lane with paved shoulder configuration and geometric
improvement from Km 0.000 to Km 16.990 on Chenani –
WP(C) No. 1243/2023
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Sudhmahadev Section of NH-244 in the then State of Jammu
& Kashmir was envisaged to be undertaken by the Ministry of
Road, Transport & Highways through the respondent No.2-
National Highways and Infrastructure Development
Corporation Limited (in short “NHIDCL”).
04. The respondent No. 2-NHIDCL came to allot said
project work’s contract to the respondent No. 6 – M/s ECI-
SRM Projects on 27.03.2018. The allotment of the project
was governed by the following schedule:-
Name of the Contractor M/s ECI-SRM Project
Letter of Award 27.03.2018
Contract Agreement 20.04.2018
Supplementary Agreement 22.11.2018
Contract Price 155.04 Cr
Length of the Project 16.990 Km
Revised date of Completion 31.03.2022
05. At the time of institution of present writ petition,
major road construction work is said to have been carried out
and completed except at four sections where road construction
work came to suffer road block. Said four sections are :-
Km 6 + 480 to Km 6 + 76
Km 11+300 to Km 11+580
Km 11+660 to KM 11+920
Km 13+200 to Km 13+460
06. At the aforesaid four sections, the nature of road
construction is meant to be that of a steep box cut road which
is form of a road construction technique used in hilly or
mountainous terrain where a deep, narrow, rectangular
shaped or U-shaped trench (the box) is excavated through a
WP(C) No. 1243/2023
Page 4 of 32
slope to create a road way. This type of road construction
method is employed often to create a direct, stable route while
minimizing the foot prints on the hilly side.
07. It would be serving the context to state here that there
are some design constraints relatable to such type of road
construction on account of the fact that because of cutting of
soil, through which road is to pass, the excavation of the
surface, the strengthening of the side slopes etc become a
matter of challenge and that requires measures to prevent
failures on steep, excavated slopes
08. During course of execution of the project work at
aforementioned locations of said road, issues of slope stability
factor relatable to the nature of the soil cropped up. The
reason for halting of the road construction at the aforesaid
three sections is said to be soil stability factor because of deep
excavation with prospect of perennial sliding tendency of stop
box cut construction at the aforesaid three sections..
09. For dealing with the work stopping issues at said
sections, the Managing Director of the respondent No.2-
NHIDCL carried out a review meeting on 18.12.2019 which
was followed by involvement of all the concerned stakeholders.
In this meeting, it is said to have been decided to get the strata
geologically examined as per the site conditions and a feasible
slope stabilization proposal.
10. There is said to have taken place follow up inspection
by the officials of the respondents No. 2, 3 & 4 joined by the
respondent No. 5 – the Consultant of the respondent No. 2, the
respondent No. 6 and its representatives and its deputed
Geologist and Design Director on 16.06.2020.
WP(C) No. 1243/2023
Page 5 of 32
11. The purported inspection is said to have resulted in
the respondent No. 6 – M/s ECI-SRM Project’s engaged and
deputed Geologist-Mr. K. S. Jamwal (ex -Deputy Director
General, Geological Survey of India) coming up with a
purported report and putting up the following conclusions:-
“Conclusion
➢ After taking into considerations of all the prevailing
geological conditions and ground realities. It is
recommended that alignment of the proposed road
may be detoured for this section to avoid possibility
of threat to the road users and local populace. It
would be better if we opt for a tunnel in this
section.
➢ The proposal of tunnel should not be viewed from
prism of financial implications only, because it will
provide long term stability and safety. However,
the provision of detouring of this section, may also
be worked out for economical and reliable aspects.
Moreover, such a huge cutting of overburden to
form box-cut is not advisable because it will remain
constantly under safety threat. Even cut & cover
section does not seem favourable for this length
because for that also, we have to excavate first up
to a depth of 43 m which may cause serious
hazards and unfortunate human suffering before
we fill it with cover.
➢ Proposal for 120 m long tunnel, between CH
13+300 and CH 13+420 seems feasible and
permanent remedial measures for anticipated
serious hazards of landslides within this most
critical section where cutting of 43 m overburden is
involved. Moreover, excavation of proposed tunnel
will have similar favourable geological conditions
WP(C) No. 1243/2023
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like the CHENANI-NASHRI TUNNEL. In this case,
the intersection of the tunnel axis with geometry of
rocks is more favourable than that of CHENANI-
NASHRI TUNNEL.
➢ If such changes are feasible and possible at this
stage, then a balanced view of both situations may
be worked out from point of view of Techno -
economic feasibility to arrive at final decision. But
undersigned is of the opinion that option of the
detouring seems appropriate and technoeconomical
than all other options.
Final Conclusion:
1. Box Cut @ Ch 6+470 to 6+700: Detouring of this
site be tried through available natural gap near by
the present site. Else 100 M cut and cover method
can also be adopted to avoid the risk of slope
failure.
2. Box Cut @ Ch 11+340 to 11+540: Detouring of this
site be tried through available natural gap near by
the present site. Else 100 M Tunnel can also be
adopted, to avoid the risk of slope failure.
3. Box Cut @ Ch 11+700 to 11+960: Detouring of this
site be tried through available natural gap near by
the present site. Else 120 M Tunnel can also be
adopted, to avoid the risk of slope failure.
4. Box Cut @ Ch 13+220 to 13+460: Detouring of this
site be tried through available natural gap near by
the present site. Else 120 M Tunnel can also be
adopted, to avoid the risk of slope failure.”
12. The purported report of Mr. K. S. Jamwal (ex-Deputy
Director General, Geological Survey of India) annexed with the
WP(C) No. 1243/2023
Page 7 of 32
writ petition bears the signature of said Mr. K. S. Jamwal as
well as of Design Director, co-author to the said report while
bearing date 15.09.2020.
13. As against the aforesaid said report dated 15.09.2020
generated from the end of the respondent N0.6 , the
respondent No. 5, in its communication No. S-NHIDCL-SQS-
885 dated 03.10.2020 (Annexure-III, Page 56 to the writ
petition) addressed its own take to the respondent No. 4 –
General Manager (P), PMU-Akhnoor. In this communication of
the respondent No. 5, reference is being made to two
communications dated 10.07.2020 & 16.09.2020 from the
end of the respondent No. 6 - M/s ECI-SRM Projects.
14. In its above said communication dated 03.10.2020,
the respondent No. 5 refers to the discussion with the
respondent No. 6 and the Geologist . In this regard, the
proposal submitted by the respondent No. 6 came to be cited
which proposal is as under:-
S.
No.
Description
of
Option
Chainage Length
(in Mtr)
1 Realignment/
Detouring
Ch. 6+480 to 6+760 280 M
Ch. 11+300 to
11+540
240 M
Ch. 11+660 to
11+920
260 M
Ch. 13+200 to
13+460
260 M
Total 1040 M
2 Tunnel
Sections
Ch. 6+540 to 6+660 120 M
Ch. 11+380 to
11+480
100 M
Ch. 11+760 to
11+880
120 M
Ch. 13+300 to
13+420
120 M
Total 460 M
3 Cut & Cover Not Feasible as per -
WP(C) No. 1243/2023
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Sections contractor's
Proposal
15. It came to be conveyed by the respondent No. 5, in its
very said communication dated 03.10.2020 , that upon
examination by the respondent No.5’s Highway Design Expert,
the proposal of tunnels is not feasible in the given geological
conditions due to inadequate ground mass. Insofar as
proposal for realignment/detouring is concerned, the same is
said to be having the concurrence of the respondent No. 5 with
the following ramifications:
“The proposal involves an approximately 520 M
increase in length of the project highway in the affected
sections as per the details given below:-
S.
No.
Box Cut
Chainage
Original
Length
(m)
Maximum
Height
(in m)
Realignment
/ Detouring
Chainage
Revised
Length in
Detouring
(m)
Variation
in
Length
(m)
1 6+480 to
6+760
280 30.68 6+480 to
6+990
430 150
2 11+300
to
11+540
240 34.48 11+280 to
11+560
320 80
3 11+660
to
11+920
260 37 11+760 to
11+880
410 150
4 13+200
to
13+460
260 43 13+280 to
13+540
400 140
1040 Total 1560 520
Increase in length due to detouring was proposed
to be not involving any increase in total project cost as
the same could be adjusted out of saving in length of
project highway due to restricting scope of the package
upto 15+600 instead of 16+990 as per original scope of
contract.”
WP(C) No. 1243/2023
Page 9 of 32
16. The respondent No. 2 was, thus, urged to take a
suitable decision regarding disposal of ROW approximately
2.50 hectare already acquired at said box cut sections which
would be rendered surplus.
17. Thus, the respondent No. 5 extended its in-principle
approval for realignment/detouring of the subject highway in
the box cut sections as per the details set out hereinabove.
18. On 26
th
& 27
th
of September, 2020, there is said to
have taken place Special Project Monitor’s (SPM) visit to the
site to come up with an opinion that option of
realignment/detouring is feasible and economical. Mention of
this fact is found made in communication No. NHIDCL/PMU -
AKH/AE/C-S/2020-21/802 dated 20.10.2020 (annexure-IV,
page 59 to the writ petition) of the respondent No. 4 – General
Manager (P), NHIDCL, PMU -Akhnoor addressed to the
respondent No. 3 – Executive Director (P), NHIDCL, RO -
Jammu.
19. The respondent No. 4- General Manager (P), NHIDCL,
PMU-Akhnoor from his end through aforesaid communication
dated 20.10.2020 came up with his take and opinion that
option for realignment is not a sensible provision and that
construction of box cut after securing the slopes is feasible
and viable so as to continue with construction of open box cut
as planned. This opinion of the respondent No. 4- General
Manager (P), NHIDCL, PMU -Akhnoor was however relatable
to section 6+480 to 6+760 whereas with respect to other three
sections, the respondent No. 4 - General Manager (P),
NHIDCL, PMU -Akhnoor endorsed the proposal for
WP(C) No. 1243/2023
Page 10 of 32
realignment/ detouring as proposed and submitted by the
respondent No. 5 in his communication dated 03.10.2020.
20. From the aforesaid communication dated 20.10.2020
of the respondent No. 4- General Manager (P), NHIDCL, PMU -
Akhnoor, an inference is dished out as if the concern of the
petitioners with respect to the original plan of construction of
the national highway at the three sections/stretches is well
meaning and well placed.
21. There is said to have taken place a site visit of the
Managing Director of the respondent No. 2 – NHIDCL on
28.07.2021 as is finding mention in communication No.
NHIDCL/RO(Jammu)/JMU/C -S/2021-22/631 dated
03.08.2021( Annexure –X, Page 61 with the writ petition) from
end of the Deputy General Manager (P), NHIDCL , RO-
Jammu to the respondent No. 4 – General Manager (P),
NHIDCL, PMU-Akhnoor. In terms of said visit of the Managing
Director of the respondent No. 2 – NHIDCL on 28.07.2021,
the realignment was contemplated to be necessary in order to
bypass proposed box cuts at three locations while
simultaneously referring to carrying out of the work as per
approved scope at the location of the proposed box cuts. In
this regard, para 6 of this communication is worth
reproducing ………………................
………………………………………………
“6. As discussed during the site visit of MD
NHIDCL on 28.07.2021, re -alignment necessary
in order to bypass proposed box cuts at 03
locations and construction of Major Bridge No. 4
not to be included in the Change of Scope
proposal. Work is to be carried out as per
approved scope at the location of the proposed
WP(C) No. 1243/2023
Page 11 of 32
box cuts and the location of the Major Bridge No.
4. Authority Engineer in consultation with the
contractor is required to work out the revised
cost of the work considering only the Change of
Scope whose in principle approval was obtained
from NHIDCL HQ (namely re -alignment of Major
Bridge No. 2 and RRM Drain and Maintenance
work for 4.200 Kms) and the same may be
submitted to the Authority at the earliest.”
22. On the part of the respondent No. 4 – General Manger
(P), NHIDCL, PMU-Akhnoor, a communication No.
NHIDCL/PMU -AKH/AE/NH -244/CS/2021-22/591 dated
03.09.2021 came to be addressed to the respondent No. 5. In
this communication, the respondent No. 4- General Manager
(P), NHIDCL, PMU-Akhnoor is found to be referring to letter
No. ECI -SRM/J&K/CSD/2021 -22/401-402 dated
24.08.2021 of the respondent No. 6 on the issue of
requirement related to additional ROW for construction of a
box cut from Ch. 13+180 to 13+490 vis-à-vis Detour.
23. The said proposal of the respondent No. 6 is said to
have been diligently discussed to announce that the decision
was to go ahead with the present box cuts meaning thereby
originally conceived and planned road way construction is to
be carried out.
24. The respondent No. 4- General Manager (P), NHIDCL,
PMU-Akhnoor in his said communication dated 03.09.2021
proposed review of the case in the light of the points which are
set out herein below:-
a. There will be a need for a proper slope/angle of
repose which will have to be provided to cut faces
WP(C) No. 1243/2023
Page 12 of 32
of the box cuts for stability. To provide slope at
even minimum 60, an additional 30 meter wide
extra land along the box cut will be required to
be acquired as only total 24 meter wide land has
only been acquired as on today. This additional
land will be more or almost same if the box cut
with 42 meter height is avoided by taking a
detour. Moreover 42 meter high slope will never
be stable and safe. It will kept bleeding and
causing accidents.
b. The soil required to be dug for these three box
culverts with 43 meter height will cumulate to
almost 6 to 7 lakhs cubic meters which will
require a very huge area to stack the muck. The
land fill area is not available.
25. In his above said communication dated 03.09.2021,
the respondent No. 4 – General Manager (P), PMU-Akhnoor is
referring to a discussion during SPM’s visit and also during
the visit of MD of the respondent No. 2-NHIDCL by reference to
which it was decided to go ahead with present box cuts and,
accordingly, the respondent No. 6 was directed to proceed but
then the respondent No. 4 – General Manager (P), PMU -
Akhnoor brings in reference of severe rains bringing technical
problems for which review on the above mentioned points was
proposed.
26. On the part of the Deputy General Manager (P),
NHIDCL, RO -Jammu communication No. NHIDCL/
RO(Jammu)/JMU/C -S/2021-22/964 dated 20.09.2021
came to be addressed to the respondent No. 4 – General
Manager (P), PMU-Akhnoor by reference to review conducted
by the MD of the respondent No. 2 on 20.09.2021. In para 7
WP(C) No. 1243/2023
Page 13 of 32
of this communication, it came to be observed and recited that
during the site visit of MD of the respondent No. 2-NHIDCL on
28.07.2021 re-alignment being necessary in order to bypass
proposed box cuts at three locations and construction of major
bridge No. 4 not to be included in the change of scope proposal
as the work is to be carried out as per the approved scope at
the location of the proposed box cuts and the location of major
bridge No. 4.
27. The respondent No. 4 – General Manager (P), PMU-
Akhnoor came to address a communication
No. NHIDCL/PMU -AKH/AE/NH -244/C-S/2021-22/1077
dated 03.01.2022 to the respondent No. 3. In this
communication, the respondent No. 4 – General Manager (P),
PMU-Akhnoor in para 5 came up with the following take:-
5. Slope
protection
works for Box
cut locations:-
Since the
present
acquired ROW
was 24M
________.
As per MOM dated:
03.08.2021 of the review
meeting conducted at Jammu
under the Chairmanship of
Managing Director, NHIDCL
on 30.07.2021 after the site
visit on 28.07.2021 and
issued necessary directions as
listed below:-
Para 6 of MOM issued states
that “As discussed during the
site visit of MD NHIDCL on
28.07.2021, re-alignment is
necessary in order to bypass
proposed box cuts at 03
locations and construction of
Major Bridge No. 4 not to be
included in the Change of
Scope proposal. Work is to be
carried out as per approved
scope at the location of the
proposed box cuts and the
location of the Major Bridge
No. 4. Authority Engineer in
consultation with the
Contractor is required to work
WP(C) No. 1243/2023
Page 14 of 32
out the revised cost of the
work considering only the
Change of Scope whose in
principle approval was
obtained from NHIDCL HQ
(namely realignment of Major
Bridge No. 2 and RRM Drain
and Maintenance work for
4.200 Kms) and the same may
be submitted to the Authority
at the earliest.”
The SPM (Mr. S. K. Doon)
during site visit on 28.08.2021
while discussing the case of
Box cut Sections has
suggested that the area of
formation consists of soil
mixed with boulders and the
angle of repose is likely to be
approximately 60 degrees. As
per SPM remarks:-
a. Minimum required width
for box cut section from
Ch. 11+280 to Ch.
11+960 considering a
slope of 1H:2V shall be
(12 m + 37 m) 49 m at
the top. Approximate
quantity of excavation for
680 m long section is
likely to be more than 7
lac cum.
b. Minimum required width
for Box cut section from
Ch. 13+200 to Ch.
13+460 considering a
slope of 1H:2V shall be
(12 m + 43 m) 55 m at
the top. Approx quantity
of excavation for 260 m
long section is likely to
be more than 3 Lac cum.
The SPM in his inspection
Report dated 03.09.2021 has
suggested that either
additional land should be
acquired so that proper side
slopes are maintained to avoid
any landslides/accidents or
these sections should be
WP(C) No. 1243/2023
Page 15 of 32
developed on existing
alignment. SPM has also
suggested that same following
two options for consideration
of the Authority which were
reviewed by AE as per details
given below:-
a. OPTION-I:- Acquiring
additional land so that
proper side slopes are
maintained in deep box
cut sections to avoid any
landslides/accidents.
b. OPTION-II:- Developing
these sections on existing
alignment.
The above mentioned Options
(i.e. Option I & II) were
discussed during several
review meetings and as per
the directions of RO Jammu
vide letter No.
NHIDCL/RO(Jammu)/JMU/C -
S/2021-22/964 dated
20.09.2021. Option-I (i.e.
acquiring additional land so
that proper side slopes are
maintained in deep box cut
sections) has been considered
and included in the
Consolidated Change of Scope
proposal accordingly.
It is to be mentioned here that
the ROW width acquired at
these locations is only 24 M
but the average height of hill
cutting at these locations
requires additional width of
ROW to be acquired for proper
slope protections measures to
ensure the safety of road users
and any future landslides
obstructing the Project
highway.
Earthwork/formation cutting
for 24 m ROW has been
carried out by the contractor
(photographs enclosed) and
in-principle approval for slope
stability measures are
WP(C) No. 1243/2023
Page 16 of 32
required to proceed further.
28. Aforesaid communication came to be followed by
another communication No.NHIDCL/RO(Jammu)/AKH/ NH -
244/C-S/18(8)/2021-22/1830 dated 11.01.2022 from the
end of the respondent No. 3 to the General Manager (T),
NHIDCL HQ, New Delhi wherein in para 5(e) the following
situation came to be put up:-
5(e) Slope protection works for Box cut
locations:- Since the present acquired ROW
was 24M___________
PMU-Akhnoor &
AE's Comments
Comments/Recommendation
of RO-Jammu
As per MOM dated: -
03.08.2021 of the
review meeting
conducted at
Jammu under the
Chairmanship of
Managing Director,
NHIDCL on 30.07
2021 after the site
visit on 28.07.2021
and issued
necessary directions
as listed below:-
Para 6 of MOM
issued states that
"As discussed
during the site visit
of MD NHIDCL on
28.07 2021, re -
alignment is
necessary in order
to bypass proposed
box cuts at 03
locations and
construction of
Major Bridge No.4
The proposal for detouring at
04 Nos of Box Cut locations
was initially submitted by the
Contractor as the height of box
cuts at this location was found
to be very high between 28-45
m. However, at Km 6+480 to
Km 6+760, the said proposal
was not allowed as the work at
this location was already
initiated and the forest trees
were also cut. However, the
detouring at 03 Nos of location
was also discussed during the
visit of MD NHIDCL on 28.07
.2021 and owing to the fact
that, the detouring would
require additional land
acquisition which would lead
to the further delay in the
completion of the project under
PMDP-2015, which is already
lagging behind the scheduled
date of completion, instruction
was issued by MD NHIDCL to
drop the proposal for detouring
WP(C) No. 1243/2023
Page 17 of 32
not to be included in
the Change of Scope
proposal. Work is to
be carried out as per
approved scope at
the location of the
proposed box cuts
and the location of
the Major Bridge No.
4. Authority
Engineer in
consultation with
the Contactor is
required to work out
the revised cost of
the work
considering only the
Change of Scope
whose in principle
approval was
obtained from
NHIDCL HQ (namely
realignment of Major
Bridge No. 2 and
RRM Drain and
Maintenance work
for 4.200 Kms) and
the same may be
submitted to th e
Authority at the
earliest."
The SPM (Mr. S. K.
Doon) during site
visit on 28.08.2021
while discussing the
case of Box cut
Sections has
suggested that the
area of formation
consists of soil
mixed with boulders
and the angle of
repose is likely to be
approximately 60
degrees. As per SPM
at these locations and carry
out the work as per the
Schedule-B of Contract
Agreement with requisite slope
protection works.
Accordingly, this office has
directed the Contractor to
carry out the work at these
locations as per Schedule-B,
however, it may also be noted
that the ROW acquired at
these locations is only 24 m
and since the overburden at
these locations were in the
range of 28-45 m, hence, as
highlighted by SPM, Shri SK
Doon in his inspection report
that considering a slope of
1H:2V, the minimum width
required for box cut sections at
Ch 11+280 to Km 1l+960 is 49
m at the top and requires
additional land and
accordingly at Ch.13+200 to
13+460, the minimum width
required at the top for BOX
Cut was determined as 55 m,
with a requirement of
additional land. The SPM
suggested two options as
indicated by PMU-Akhnoor viz.
(i) Acquiring additional land so
that proper side slopes are
maintained in deep box cut
sections & (ii) developing these
sections in existing road. The
same has been discussed
several times at this office and
as per the directions issued by
this office vide letter dated 20
09 2021, the option-l has been
considered by AE & GM(P),
PMu-Akhnoor for
consideration considered
WP(C) No. 1243/2023
Page 18 of 32
remarks: Minimum
required width for
box cut section from
Ch. 11 +280 to Ch.
11+960 considering
a slope of 'lH:2V
shall be (12 m + 37
m) 49 m at the top.
Approximate
quantity of
excavation for 680
m long section is
likely to be more
than 7 lac cum.
a. Minimum
required width
for Box cut
section from
Ch.13+200 to
Ch. 13+460
considering a
slope of lH:2V
shall be (12 m
+43 m) 55m at
the top. Approx
quantity of
excavation for
260 m long
section is likely
to be more
than 3 Lac
cum.
The SPM in his
inspection Report
dated 03.09.2021
has suggested that
either additional
land should be
acquired so that
proper side slopes
are maintained to
avoid any
landslides/accidents
or these sections
should be developed
under clause 13 1.3 (iii).
In this context, the COS
proposal has been examined in
this office and it has been
observed that instead of 04
locations, the contractor has
submitted the proposal for 06
locations and the additional 02
box-cut locations involves
acquisition of Forest land. The
box cut proposed at Ch 6+020
to Ch.6+250, involves Private
land on LHS and Forest land
on RHS, Further, the box cut
at Ch. 6+500 to Ch.6+700
involves Forest land at both
LHS and RHS. The EPC
Contractor and AE has
previously been directed by
this office, that COS regarding
slope protection requiring
additional acquisition of Forest
land shall not be considered
since the whole process is time
taking and shall delay the
completion of the project.
Therefore, this office is of
opinion that the proposal for
COS for slope protection works
viz. catchment drain, chute
drain, matting and hydro
seeding as well as additional
excavation work at these
locations for maintaining the
requisite slope is
recommended for 04 locations
only as per Annexure-G for
according in-principle approval
and issuing of Change of Scope
order as per clause 13.2.4 of
Contract Agreement.
WP(C) No. 1243/2023
Page 19 of 32
on existing
alignment. SPM has
also suggested the
same following two
options for
consideration of the
Authority which
were reviewed by AE
as per details given
below:
a. OPTION-I:-
Acquiring
additional land
so that proper
side slopes are
maintained in
deep box cut
sections to
avoid any
landslides/
accidents.
b. OPTION-Il: -
Developing
these sections
on existing
alignment.
The above
mentioned Options
(i.e. Option I & II)
were discussed
during several
review meetings and
as per the directions
of RO Jammu vide
letter No.
NHIDCL/RO
(Jammu)/JMU/C -
S/2O21-22/964
dated:- 20.09.2021,
Option-l (i.e.
acquiring additional
land so that proper
side slopes are
maintained in deep
box cut sections)
has been considered
WP(C) No. 1243/2023
Page 20 of 32
and included in the
Consolidated
Change of Scope
proposal
accordingly.
It is to be mentioned
here that the ROW
width acquired at
these locations is
only 24 M but the
average height of hill
cutting at these
locations requires
additional width of
ROW to be acquired
for proper slope
protections
measures to ensure
the safety of road
users and any
future landslides
obstructing the
Project highway.
Earthwork/
formation cutting for
24 m ROW has been
carried out by the
contractor
(photographs
enclosed) and in-
principle approval
for slope stability
measures are
required to proceed
further.
29. On the other hand, the Sub -Divisional Magistrate,
Chenani by virtue of his communication No. SDM/C/2021 -
22/1629-35 dated 04.02.2022 addressed to the Deputy
Commissioner, Udhampur came to adv ert to the issue of road
blockade at the aforesaid stretches stating therein that the box
cutting at eight locations have been done in an unplanned way
WP(C) No. 1243/2023
Page 21 of 32
as the land cuts are vertical despite the soil being very loose
extremely prone to slides and threat to public life and property
for which NHIDCL needs to take immediate preventive and
corrective measures. So much so, the box cuts falling in the
section in Village Chullyar are said to have caused huge losses
to public/private land and other properties.
30. The respondent No. 5 was required to consult the
respondent No. 6 to work out the revised cost of the work
considering the change of scope which might become
necessary for slope construction work at the location of the
box culverts as per requirement at the site.
31. It seems that it is at this stage of the situation that the
intervention from the end of the petitioner No. 4 – Sudesh
Chander came up with a representation addressed to the
Deputy Commissioner, Land Acquisition Udhampur and the
respondents No. 3 to 6 wherein the respondent No. 4 by
reference to letter dated 20.10.2020 of the respondent No. 4 –
General Manager (P), PMU -Akhnoor came to exploit the
recommendation that detouring/realignment needs to be done
because of slope stabilization issues which would always be
prone to risk rendering maintenance of national highway on
the locations very expensive. The petitioner No. 4 – Sudesh
Chander in his representation objected that the course of
action on the part of the respondent No. 3 on his own to
acquire more land for increasing the road width at the
aforesaid locations was in disregard to the recommendations
on the issue.
32. The respondent No. 4 – General Manager (P), PMU-
Akhnoor from his end came to address communication No.
WP(C) No. 1243/2023
Page 22 of 32
NHIDCL/PMU -AKH/C-S/R&P.G/2022-23/738 dated
09.11.2022 in response to the petitioner No. 4’s e-mail dated
03.11.2022. The respondent No. 4 – General Manager (P),
PMU-Akhnoor in his said communication dated 09.11.2022
meant to object to the petitioner No. 4 as to how he came to
acquire the official correspondence related to NHIDCL and its
officials.
33. The petitioner No. 4 from his end by virtue of his letter
dated 15.11.2022 addressed to the respondent No. 4 –
General Manager (P), PMU-Akhnoor came to refer that the
communications related to the subject are there in the public
domain through the reference of the respondent No. 5 as well
as the respondent No. 6. The petitioner No. 4 came to impress
upon the respondent No. 4 – General Manager (P), PMU-
Akhnoor to came to allege that the respondent No. 4 – General
Manager (P), PMU-Akhnoor was in hand in globe with the
respondent No. 6.
34. As per the petitioners, their concern was brought to
the notice of Member Parliament - Shri Jugal Kishore Sharma
and other concerned public authorities for revisiting the
original plan of construction of the road at the aforesaid three
locations/sections.
35. The petitioners at this stage had come forward with
the institution of the present writ petition on 15.05.2023
along with the photographs of the site in reference attached for
the five sections showing box cut No. 1.
36. In their writ petition, the petitioners in para 22 came
forward with the grounds of challenge addressed against the
casual approach of the respondents with respect to
WP(C) No. 1243/2023
Page 23 of 32
construction of the road in the form of High Gallas/Open Box
Cut at three locations i.e., Ch. 11+300 to 11+540, 11+660 to
11+920 & 13+200 to 13+460 stating the same to be against
the proposal and recommendations of the respondent No. 4 –
General Manager (P), PMU-Akhnoor and the respondent No. 5.
37. The petitioners in the grounds of challenge pleaded
that proposed alignment of road with Deep Gallas/ Box Cut is
not viable in the area as per the expert Geologist and despite
his report and recommendations endorsed by the officials of
NHIDCL, the respondent No. 2 is not accepting the same
which action of the respondent No. 2 is, thus, said to be
arbitrary and unfair lacking bona fide. Thus, much emphasis
has been placed upon so-called expert report of Geologist-Mr.
S. K. Jamwal nominated by none else than the contractor-
respondent No. 6 whose report then came to be endorsed and
recommended by the respondent No. 4 – General Manager (P),
PMU-Akhnoor joined by the respondent No. 5. The petitioners,
thus, asked for the following prayers:-
“Writ petition under Article 226 of the Constitution of
India for the issuance of an appropriate writ, direction
or orders commanding the respondent No.2 to 4 to
execute the work of widening and upgradation on
Chenani- Sudhmahadev Section of NH -244 by
accepting the proposal/ recommendation of the
Authority's Engineer (Respondent No. 5) dated
O3.1O.2O2O forwarded to respondent No. 4 for
realignment/ detouring option at 03 Locations i.e.
Ch.11+30O to 11+540, 11+660 to l7+92O and 13+200
to 13+460 which is based upon the report of Geological
Expert Sh. K.S. Jamwal (Retd. Deputy Director,
Geological Survey of India) instead of the construction
WP(C) No. 1243/2023
Page 24 of 32
of High Gallas/ Box Cut which being unstable shall be
prone to landslides and shooting stones leading to risk
of loss of lives not only of the residents of the area but
also the commuters plying through the said sections of
the NH-244;
With further writ direction or order commanding the
respondent No. 2 and 3 to accept the proposal/
recommendations dated 20.lO.2O2O of the respondent
No. 4 for realignment/ detouring option at 03 Locations
i.e., Ch.11+3OO to l1+540, 11+660 to 11+920 and
13+200 to 13+460 having being recommended for in
principal approval, which is not only based upon the
Expert opinion of the Authority's Engineer but also the
Special Project Monitor;
With further issuance of appropriate writ direction or
order restraining the respondent No.2 to 6 to execute
the work at 03 Locations i.e., Ch.11+300 to 11+540,
11+660 to l7+92O and 13+2OO to 13+460 by
construction of High Gallas/ Open Box Cut being not
only against the expert recommendations but being
prone to collapse of side slopes which could lead to
man-made disaster in the area of the petitioners.
With further issuance of appropriate writ direction or
order which this Hon'ble Court may deem fit and proper
in the facts and circumstances of the writ petition.”
38. In response to the writ petition, this Court, by virtue
of an order dated 19.05.2023, came to place status-quo
direction as a result whereof situation came to be held up.
39. From the end of the respondents No. 1 to 4, reply cum
objections to the writ petition came to be submitted on
WP(C) No. 1243/2023
Page 25 of 32
02.08.2023 accompanied with an application for vacation of
status-quo direction as set out in the order dated 19.05.2023
by this Court.
40. The reply/objections on behalf of the respondents No.
1 to 4 was signed by the respondent No. 4 – General Manager
(P), PMU-Akhnoor supported by an affidavit of incumbent Shri.
S. P. Singh Sangwan.
41. Along with their reply/objections, the answering
respondents No. 1 to 4 came up with set of supporting
communications as annexures to assert that the writ petition
is based not on true facts and without any locus-standi on the
part of the petitioners.
42. In their reply/objections, the answering respondents
No. 1 to 4 came to submit that the MD of the respondent No. 2
on the basis of his visit on 28.07.2021 had directed that the
upgradation of the road shall be carried out as per the original
alignment including the Deep Box Cuts for which purpose the
SPM in his report dated 03.09.2021 suggested additional land
to be acquired for proper site slopes maintenance to avoid any
landslide/accidents.
43. In the reply/objections, the respondent No. 4 –
General Manager (P), PMU-Akhnoor came to submit that the
respondent No. 6 was directed to go ahead with the
construction of box culverts and the respondent No. 5 was
directed to propose slope protection measures which are
necessary as per the site conditions along with protection to
work out the additional land acquired as per site conditions so
as to maintain stable slope after proposing slope protection
measures.
WP(C) No. 1243/2023
Page 26 of 32
44. By reference to a communication dated 20.09.2021, a
direction for carrying out the work as per the original
alignment was emphasized.
45. By reference to deliberations of a meeting held on
04.10.2022 under the Chairmanship of MD of the respondent
No. 2, the directions issued to the respondent No. 6 to execute
the work as per the provisions of the contract without any
additional financial implications due to require d slope
protection has been reiterated with an observ ation that
additional land at the box cut locations to be provided by the
respondent No. 5 to the respondent No. 6 for which additional
required land is said to have been acquired to the extent of
1.86 Hectares.
46. From the end of the petitioner No. 1 – Surinder Singh,
a Supplementary Affidavit dated 01.04.2024 came to be
submitted in order to counter the factual assertions made in
their reply/objections on behalf of the respondents No. 1 to 4.
47. In his Supplementary Affidavit, the petitioner No. 1 –
Surinder Singh came up with emphasis that the respondents
No. 1 to 4 have neglected the report of the Geologist appointed
by the respondent No. 6 in which it is clearly mentioned that
detouring of the road in issue should be tried/attempted to
avoid the risk of slope failure and in the alternative, the
recommendation for 100 M cut and cover method instead of
box cuts. The Geologist’s report is said to have received no
consideration at all. In the supplementary affidavit, the
petitioner No. 1 came to reiterate that Special Project Monitor’s
(SPM) report dated 01.10.2020 being contrary to its second
report dated 03.09.2021 in the context of which realignment
WP(C) No. 1243/2023
Page 27 of 32
option is the better option reiterated by the respondent No. 5
as well.
48. On behalf of the respondent No. 5, reply to the writ
petition came to be filed on 14.03.2024. In his objections, the
respondent No. 5 came forward with a statement that on the
basis of visit of MD of the respondent No. 2 – NHIDCL on
28.07.2021, the direction was to carry out the upgradation of
the road as per the original alignment including the deep box
cut. In his reply, the respondent No. 5 comes to state that
while discussing the case of box cut sections, the Special
Project Monitor (SDM) in his report dated 03.09.2021 has
come to suggest that additional land should be required for
proper side slopes to be maintained to avoid any
landslide/accidents, on the basis whereof the respondent No.
6 came to be directed to go ahead with the construction of box
culverts and the respondent No. 5 was directed to propose
slope protection measures necessary as per the site conditions
besides direction for working out additional land acquired as
per site conditions so as to maintain stable slopes after
proposing slope protection measures.
49. On behalf of the respondent No. 6, reply/objections to
the writ petition came to be filed on 22.04.2024. In its reply,
the respondent No. 6 has come to place reliance upon
Geologist – Shri K. S. Jamwal’s report to say that if road
construction is to be carried out as per the original layout then
it may lead to geological disturbances in the soil/rock mass in
the affected sections besides an environmental damage which
shall adversely affect safety of the local public and the road
users travelling on these highway sections.
WP(C) No. 1243/2023
Page 28 of 32
50. The respondent No. 6, in its reply has emphasized
that the geological study report along with its various technical
proposals submitted by the Geological Expert – Shri S. K.
Jamwal should be considered in the large interest of stability
of the highway project and for the sake of public safety. The
respondent No. 6 along with its reply has annexed a technical
report from the end of the Design Director of the respondent
No. 6. In this technical report, emphasis has been again
referred to that of Geologist-Shri K. S. Jamwal’s report and
recommendations and the consideration received from the end
of the respondents No. 4 & 5.
51. The direction of MD of the respondent No. 2 – NHIDCL
on 28.07.2021’s visit to go ahead with the original plan of
construction for open box cut sections with suitable slope
protection/stabilization measures was referred to be
technically neither in line with the measures recommended by
the Geology domain expert nor in line with the respondent No.
5’s recommendation in the matter. In this regard reference has
been made to the provisions of clause 7.9.3 of IRC:SP;48-1998
with respect to deep box cuts which is reproduced herein
under:-
“Box cut: At steep and narrow spurs, box cut or
through cuts may be provided. These reduce the length
of the road and also improve the radius of curves. Such
cuts, however, have their own problems. During
excavation, the cutting and disposal of spoils take more
time and efforts as compared to hill side cut. Drainage
of road surface and surrounding areas is difficult. Sub-
surface springs get activated on the formation during
wet weather. If the soil is unstable box cuts become
trouble spots due to frequent slides and blockage of
road requiring expensive protective works like breast
walls, sub-soil drains, catch water drains etc. A careful
study and comparative cost analysis of reduction in
WP(C) No. 1243/2023
Page 29 of 32
length vis-a-vis provision of additional protective works
should be made before taking a decision on providing
box cuts. A typical cross section of box cut is shown in
Fig. 7.12.”
52. It is in aforesaid backdrop of chronology of facts and
circumstances that the petitioners are seeking issuance of an
appropriate writ, direction or order thereby commanding the
respondents No. 2 to 4 to execute the work of widening and
upgradation of Chenani-Sudhmahadev Road Section of NH -
244 by accepting the proposal/ recommendation of the
respondent No. 5 in terms of communication dated
03.10.2020 forwarded to the respondent No. 4 – General
Manager (P), PMU - Akhnoor, NHIDCL for
realignment/detouring option at three locations based upon
report of Geological Expert – K. S. Jamwal instead of going
ahead with the construction of High Gallas/ Box Cut which is
claimed to be unstable and prone to landslides and shooting
stones leading to the risk of loss of lives of the residents of the
area but also the users of Chenani-Sudhmahadev NH -244 at
aforesaid sections.
53. The petitioners also seek an appropriate writ direction
or order commanding the respondent No. 2 – NHIDCL and the
respondent No. 3 – Executive Engineer (P), NHIDCL for
accepting proposal/recommendations of the respondent No. 4
– General Manager (P), PMU -Akhnoor for
realignment/detouring option at three given locations having
been recommended and accepted in principle based not only
upon expert opinion of the respondent No. 5 but also of the
Special Project Manager (SPM).
54. Thus, in a way, this Court is being called upon by the
petitioners to prohibit the respondents from going ahead with
WP(C) No. 1243/2023
Page 30 of 32
the original plan of construction of the Chenani-Sudhmahadev
NH-244 by reference to the three/four locations in reference
said to be problematic in terms of construction of the road to
pass through said three/four locations.
55. Before this Court examines its competence to issue so
called expert like direction/order unto the respondent No. 2 in
particular i.e., NHIDCL to abandon the original scheme of
things in the construction of NH-244 at aforesaid three
locations, this Court needs to bear in mind the mandate of the
Hon’ble Supreme Court of India providing scope for indulgence
in such like situations/cases, which is set out in the
judgments in the following cases:-
1) 1991 (2) SCC 539: Dahanu Taluka
Environment Protection Group and another
Vs. Bombay Suburban Electricity Supply
Company Limited and others.
2) 1999 (1) SCC 492 : Raunaq International
Ltd. v. I.V.R. Construction Ltd. & Ors.
3) 2000 (10) SCC 664: Narmada Bachao
Andolan vs Union of India And Others
4) 2016 (6) SCC 408 : Centre For Public
Interest Litigation vs U.O.I.& Ors.
5) 2001 (3) SCC 572 : The Project Director,
Project Implementation Unit Vs P. V.
Krishnamoorthy & others.
6) 2022 (11) SCC 1: Rajiv Suri Vs D elhi
Development Authority.
7) 2022 (6) SCC 127: N.G. Projects Limited v.
Vinod Kumar Jain.
8) 2024 (1) SCC 716 : Delhi International
Airport Vs Union of India and others.
WP(C) No. 1243/2023
Page 31 of 32
9) 2025 SC 2901 : Bindu Kapurea Vs
Subhashish Panda & Ors.
56. This Court has no iota of doubt that the present writ
petition has a taint of being a sponsored litigation and that too
prompted by and at the end of the respondents No. 5 to 6.
57. To put it more simply, the respondents No. 5 to 6
seem to have self invited this writ petition from the end of the
four petitioners who otherwise cannot be assumed to have
such a passionate indulgence in the matter of tracking the
development project of Chenani -Sudhmahadev NH -244
construction project to the extent of knowing each and every in
and out project related nuisances.
58. This Court has not come across with any averment
from the end of the petitioners in the entire writ petition as to
how they were able to get all the purported requisite interest
and information forming subject matter of the writ petition as
surely not by exercise of their right to information under the
Right to Information Act, 2005.
59. Even if this Court were to make concession for the
bona fide of the petitioners that as being proactive residents of
the area being concerned with the ongoing construction of
Chenani-Sudhmahadev NH-244, still this Court would not be
in a position to assume the driver seat by substituting the
respondent No. 2 – NHIDCL to direct as to how the
construction of the road at three sections/stretches is to be
carried out or ought to be carried out.
60. Factually gathering from the standpoint of the
respondent No. 2 – NHIDCL, this Court cannot do fault finding
with the final decision of the respondent No. 2- NHIDCL in
WP(C) No. 1243/2023
Page 32 of 32
terms whereof the construction of the road at three
sections/stretches has been asked to be carried out as
originally conceived with all safety provisions having been
resorted to by the respondent No. 2- NHIDCL at its end.
61. In case the Chenani-Sudhmahadev NH -244 would
ever suffer any mishap at the aforesaid three sections as
apprehended by the petitioners, then surely the culpability
and accountability of the respondent No. 2- NHIDCL would be
there to attend the delinquence and deficiency of the
respondent No. 2 – NHIDCL but as on date when the writ
petition came to be filed and the case has been heard, this
Court cannot assume that the respondent No. 2 – NHIDCL is
adamant to undertake road construction at three
sections/stretches on a risk and vulnerable note.
62. Therefore, this Court finds lack of bona fide at the end
of the petitioners as well as lack of cause of action at their
disposal to come up with the present writ petition which is
held to be misconceived and, accordingly, dismissed.
63. Any interim direction operating in the present writ
petition shall also stand dismissed.
64. The detailed judgment is following the order dated
25.09.2024 vide which the petition was ordered to be
dismissed as is hereby being done.
(Rahul Bharti)
Judge
Jammu
12.03.2026
Muneesh
Whether the judgment is speaking : Yes / No
Whether the judgment is reportable : Yes / No
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