Janki Prasad Badola vs Superintendent Engineer 12th Circle & Others

K.M. JOSEPH, C.J. (Oral)

Petitioner has approached this Court seeking the following reliefs:

“I. Issue a writ, order or direction in nature of mandamus directing the respondents to construct the road according the old survey and not destroy

the Irrigated Agriculture Land of the villagers without their consent.

II. Issue a writ, order or direction in nature of mandamus directing the respondents not destroyed their irrigated agriculture land which is the main

source of their livelihood.â€​

Briefly put, the case of the petitioner is as follows:

Petitioner is a resident of village Kanda, District Pauri Garhwal. Petitioner’s case is that the respondents/authorities are adamant to construct the

road through the irrigated land. However, it has been vehemently opposed by the villagers, who he contends that they have no other irrigated land and

they are dependant for their livelihood on the irrigated land. Representation (Annexure 1) has been made by the villagers to the Executive Engineer on

15.08.2009, which was followed up by Annexure 2 representation dated 23.02.2011 addressed to respondent no. 3- Chief Engineer, Public Works

Department, Pauri Garhwal. A further representation was made as Annexure 3 when no action was taken to start construction on the basis of old

survey, this time it was made to the District Magistrate. Petitioner’s case is that in pursuance to Annexure 3, the third respondent, namely, the

Chief Engineer asked, by his letter dated 06.05.2011, directed the Superintendent Engineer 12th Circle to explain under what circumstances road is

being constructed on the basis of new survey. The villagers were making complaint that the survey has been changed to benefit a particular person, it

is stated. He i.e. Chief Engineer called for report as to in which circumstances, in the new alignment, the work was going on even after the objection

of the villagers. The community of Scheduled Castes also made a representation (Annexure 5) dated 15.04.2011. It is further stated that the entire

villagers are opposing the change of the old survey in this regard. There is reference to Annexure 6, which purports to be an order passed in a Public

Interest Litigation.

We heard Mr. Mangal Singh Chauhan, learned counsel for the petitioner and Mrs. Prabha Naithani, learned Brief Holder for the State/respondents.

A counter affidavit has been filed by respondent nos. 1 to 3. Therein, inter alia it is stated that in fact there is no old survey prepared by the

department. There is only one survey conducted and report was prepared by the department, which was approved by the competent authority i.e.

Superintendent Engineer on 4.12.2009, which is known as Margaon-Kanda Motor road. The total length of the said road is approximately 5 kms. It is

being constructed under the State Finance Scheme. Initially, when the road was sanctioned, the departmental authorities with a team went on the spot

for preparation of survey report. The officials of the department surveyed the route via Seed godown-school and to the village Kanda. As soon as the

survey was conducted upto 4 kms., there was agitation from the villagers. Some of the villagers wanted the road to be diverted from the spot 2.5 kms.

downwards towards the village; whereas, some of the villagers wanted the road to be diverted upwards from the spot 2.5 kms. Further survey, in view

of the agitation, was not undertaken on the remaining 1 km. stretch. Thereafter, it is stated as follows in the counter affidavit:

“6. That department conducted a fresh survey from the spot 2.5 km., which was undisputed and surveyed the road upwards of the village Kanda.

The upward survey of the road passed through the middle of the village. The Gram Pradhan of Village Kanda Smt. Anita Devi and other villagers

gave their consent to the survey conducted by the department by their letter dated 30.7.2009 to the Executive Engineer, Provincial Division, P.W.D.,

Pauri. The NOC of the villagers/Gram Pradhan was pertaining to the survey conducted showing the upward construction of the Margaon-Kanda

motor-road. Copy of the NOC given by the Gram Pradhan is being annexed as Annexure CA-1 to this affidavit.

That as soon as the NOC was received by the Executive Engineer, Provincial Division, P.W.D., Pauri, the necessary file was moved for taking the

sanctioned from the competent authority i.e. Superintending Engineer, 12th Circle, P.W.D., Pauri for further action on survey so conducted. The

Superintending Engineer has given approval for the construction of Margaon-Kanda motor-road on 4.12.2009. Copy of the approval dated 4-12-2009

alongwith all the necessary documents are being annexed as Annexure CA-2 to this affidavit.

That at this juncture it will be necessary to point out here that after a controversy was raised in the present public interest litigation the department

has also prepared a map of the area showing the construction o the motorable road. The perusal of the map shows that upto the spot shown in the

map by existence of a school, there is no dispute either by the petitioner or by any of the villagers. The single black line in the map prepared by the

department shows the sanctioned alignment of the road in question. The doted line in the said map shows the contention of the petitioner. Copy of the

map prepared by the department is being annexed as Annexure CA-3 to this affidavit.â€​

Thereafter, it is stated that the department entered into an agreement with the contractor for construction of the road upto the point 4 kms. Various

dates, on which the agreements were executed, are mentioned. Pursuant to the agreement, the contractors have undertaken the hill cutting activity

upto 2.5 kms., which survey is undisputed between the parties.

Thereafter, it is stated as follows:

“11. That since the dispute was being raised by the petitioner in respect to the further construction of the Margaon-Kanda motor road from the

point 2.5 kms. onward, as such, the department itself in the month of March 2011 has stopped the further construction from the point 2.5 kms.

onwards. So far as the construction activity in the 2.5 kms. strech is concerned, the same has also been stopped by the contractors after passing of

the interim order by this Hon’ble Court.

That filing of the writ petition and after passing of the interim order by this Hon’ble Court on 29.9.2011 and 9.11.2011, on the advice of the

District Govt. Counsel, Pauri, the Deputy Revenue Inspector, Tehsil Pauri conducted a fresh inspection of the area where the motorable road from the

point 2. kms. onwards was to be constructed. The Deputy Revenue Inspector submitted his report dated 10.11.2011 to the District Govt. Counsel

stating therein that there is no damage to the natural source of water or the forest land or to the residential buildings. Copy of the report dated

10.11.2011 of the Deputy Revenue Inspector is being annexed as Annexure CA 4 to this affidavit.

That at this stage it will also be necessary to state that the Margaon-Kanda motor road has to pass through the agricultural land. The road, if

constructed, as per the survey of the department, than also the agricultural land of the villagers will be affected. The road, if constructed as per the

proposal of the petitioner, than also the agricultural land of the villagers will be affected, since, the entire village for which the road has been

sanctioned consist of agricultural land. The Gram Pradhan/villagers of village Kanda by their NOC dated 30.7.2009 have agreed for the construction

of the road. The Gram Pradhan has given a letter to the Executive Engineer dated 22.9.2009, wherein it was stated the villagers have no objection in

giving their land for construction of the road. Copy of the letter dated 22.9.2009 of the Gram Pradhan is being annexed as Annexure CA 5 to this

affidavit.

That the department has prepared the list of persons whose agricultural land are being affected by constructions of the road upto the point 2.5

kms. The repot dated 17.12.2011 shows that the land of as many as 33 persons and their legal heirs measuring about 2.144 hec. are going to be

affected. The report dated 17.12.2011 also shows that out of 2.144 hec. of land only 0.418 hec. land is an irrigated land. Copy of the report dated

17.12.2011 is being annexed as Annexure CA 6 to this affidavit.

That it will also be necessary to state here that so far as the petitioner’s land is concerned, the same falls within the stretch of 2.5 kms. on

which the construction activity has already been done, which stretch of Martgaon-Kanda motor road is not disputed between the parties. The revenue

records of the petitioner’s land shows that as many as 20 persons have been recorded in the revenue record in respect of said land. The total area

of the petitioner and his other relatives measure about 0.146 hec. The department has prepared the compensation amount in respect of the land of the

petitioner and other similarly situated villagers. The department vide letter dated 15.11.2011 addressed to the Gram Pradhan, Village Kanda has asked

to collect the compensation amount from the office of the Public Works Department, Pauri in respect of their land, but till date neither the petitioner

nor his representative has collected the compensation amount from the office of the Public Works Department. Copy of the letter dated 15.11.2011 is

being annexed as Annexure CA 7 to this affidavit.â€​

The said counter affidavit was filed on 5.01.2012.

At this juncture, it is necessary to notice that this Court on 29.09.2011 passed an order by which it ordered that, until further orders, the road be not

constructed on the irrigated land. Still later, on 9.11.2011, the case was admitted and it was further ordered that the interim order already passed is

confirmed with the clear clarification that no road shall be constructed on the land which is not belonging to the public/state or which has not been

donated by the villagers. Thereafter, on 03.07.2018, this Court passed the following order:

“There is no representation for the petitioner.

Mrs. Prabha Naithani, Brief Holder for the State of Uttarakhand/respondents.

We heard Mrs. Prabha Naithani, learned Brief Holder for the State of Uttarakhand/ respondents.

The learned Brief Holder will get definite instructions as regards :

Whether the construction of the road has been completed, if not fully completed, the actual extent of the road which has been constructed.

Whether any acquisition proceedings have been undertaken under the law relating to the Land Acquisition Act.

Whether in terms of the interim order any land has been donated by anybody as per the law for the construction of the road.

If the work remains unfinished, what is the extent of remaining work to be done.

A supplementary counter affidavit be filed by the respondents on or before 27th July, 2018.

List this case on 31st July, 2018 in the first five cases of the Supplementary Cause List.â€​

Pursuant to the said order, a short counter affidavit dated 27.07.2018 has been filed. Therein, it is inter alia stated in regard to the points which were

raised by order dated 03.07.2018 as follows:

“3. That it is stated that the question posed by the Hon’ble High Court was duly conveyed to the office of Executive Engineer, Provincial

Division, Public Works Department, Pauri Garhwal, who in turn vide letter dated 24.07.2018 given reply to all the four queries, which is as follows:-

1- Road construction is not completed as on today 24 July, 2018 i.e. date 24.07.2018 the road has been constructed for a length of 2.600 km. against

total sanctioned of 5.00 km.

2- The compensation against land acquisition has been distributed upto the portion to the extent of road constructed.

3- Nobody has donated any land for the construction of the road.

4- If the work remains unfinished (uncomplete), the length of 2.400 km. will be left forever.

For kind perusal of this Hon’ble Court a copy of letter dated 24.7.2018 is being filed herewith and marked as Annexure No. SCA-2 to this

affidavit.

That it is stated that initially when the Margaon-Kanda Motor Road was sanctioned the department went on the spot for preparation of the survey

report. The officials of the respondent department surveyed the route from Village Margaon via Seed godown-school and to the Village Kanda. As

soon as they survey was conducted upto 4 kms. there were agitation from the Villagers. Some of the Villagers wanted the road to be diverted from

the spot 2.5 kms. downwards towards the village, whereas some of the villagers wanted the road to be diverted upwards from the spot 2.5 kms. Since

there was agitation from the villagers, as such, further survey on the remaining 1 km. stretch was not undertaken by the department.

That because of dispute between two villages, the road could not be constructed beyond 2.600 km., moreover, the Hon’ble Court has also

granted stay dated 29.9.2011 stating that ‘until further orders the route be not constructed on the irrigated land.’ â€​

It is stated that for these reasons the work could not be completed.

This is a Public Interest Litigation. The question relates to the alignment along with which a public road is to be constructed. It is no part of the

Court’s jurisdiction, even in Public Interest Litigation, to decide as to what should be the actual alignment, unless it be that a fundamental right or

even a legal right of public or a section of the public is shown to be affected clearly. The authorities, who are competent legally and otherwise to take

such decisions, would be the concerned persons in the concerned department, who have all technical know how and expertise, namely, the engineering

staff, surveyors and the policy-makers etc. Construction of the road necessarily involves considerable outlay in terms of public spending. Looking to

the hilly track the construction of roads must be completed in a time bound fashion, as this is for the benefit of the public, more particularly, when in

the hills this is the only mode of transport available to the people of hills living in far flung hills. Any interference in such activities can be done only

with the greatest deal of caution and only in very limited circumstances, if at all legally required. It is not as if this is a case where, in pursuit of the

fundamental right of movement in any part of the country and particularly in hilly state like Uttarakhand, the petitioner seeks that a road be constructed

where there is none. On the other hand, rather what the petitioner seeks is that the alignment, which is being pursued by the department, should not be

followed as it will take over fertile and irrigated lands.

In the counter affidavit respondent have placed on record a report prepared by Revenue Sub Inspector and Amin of Public Works Department as

submitted on 10.11.2011. In the said report following findings have been recorded:

“1.- fd tks eksVj ekXkZ vc 2-50 fd0eh0 vkxs fufeZr gksuk gS] mlesa eksVj ekxZ ds vUnj fdlh dh flafpr Hkwfe ugha vkrh gSA

2- fd vkxs fufeZr gksus okys eksVj ekxZ esa djhc 200 eh0 ljdkjh Hkwfe]150 eh0 uku tsM , Js.kh 4 ¼Hkwfe tks fljrkuksa ds vf/kdkj esa gks½ dh

Hkwfe rFkk 2150 eh0 xkao okyksa dh uki Hkwfe vkrh gSA

3- fd vkxs fufeZr gksus okys eksVj ekxZ ls tgka eksVj ekxZ lajs[k.k crk;k x;k gS] dksbZ ty lzksr izHkkfor ugha gks jgk gSA

4- fd mDr eksVj ekxZ ds fuekZ.k esa dksbZ ou Hkwfe ugha vkrh gSA

5- fd mDr eksVj ekxZ ds fuekZ.k esa tgka eksVj ekxZ lajs[k.k crk;k x;k gS]dksbZ fjgk;lh Hkou /oLr ugha fd;k tkuk gSA â€​

In fact, having regard to the unrebutted allegations in paragraph 13 of the counter affidavit, it is quite clear that whichever way the alignment is

taken, some land will be bound to be affected in projects of such nature. It is practically impossible particularly in the hilly topography to satisfy the

expectation of all citizens, but some land is quite obviously is bound to be taken for construction of road, hence exact precision of expectation of people

is impossible. This we say as there is no rejoinder affidavit filed by the petitioner.

Learned Brief Holder would submit that the department intends to follow up the construction of the road and, if construction is to be done over

private lands, it will be done in terms of what is provided in law, namely, under the Land Acquisition Act or on the basis of consent as is provided in

law.

Therefore, in such circumstances, we do not deem it necessary to grant any relief to the petitioner. However, we observe that the alignment,

which the department considers proper, can be pursued by it as per law and the construction can be carried out on the basis of lands being available as

per law.

Subject to the above observations, the Writ Petition will stand dismissed. No order as to costs.