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Judgment
Rajesh H. Shukla, J.—The present petition has been filed under Articles 14, 19, 21 and 226 of the Constitution of India, wherein following prayers are made:
"(A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order of directions setting aside action of the Respondents of effecting change as shown in above mentioned table (R-3) in the original plans for construction of railway under bridge by increasing the gradient to 1:50 degrees from 1:30 degrees on Limbdi Pethapur Chakalia Kharoda Dahod Road, Dahod City, in the interest of justice
(B) YOUR LORDSHIPS may be pleased to issue appropriate writ, order of directions to Respondents to provide service road having width of 7.9 Mts on the under-bridge situated on Limbdi Pethapur Chakalia Kharoda Dahod Road, Dahod City, in the interest of justice
(C) YOUR LORDSHIPS may be pleased to direct the Respondent not to change the specifications and to execute the project work for construction of railway under bridge on Limbdi Pethapur Chakalia Kharoda Dahod Road, Dahod City pending the admission hearing and final disposal of this petition, in the interest of justice;
(D) YOUR LORDSHIPS may be pleased to direct the Respondents not to execute the project work for construction of railway under the bridge on Limbdi Pethapur Chakalia Kharoda Dahod Road, Dahod City without firstly providing service road having adequate width of 7.9 mts, in a length with original gradient of 1:30 mtrs, pending admission hearing and final disposal of this petition;
(E) YOUR LORDSHIPS may be pleased to grant such other and further reliefs, as are deemed fit, in the interest of justice;"
However, learned Counsel, Mr. Y.M. Thakkar for the Petitioner has fairly stated that notice has been issued by the Court confining to the grievance with regard to width of the road i.e. as prayed for in Prayer (B) of the petition. In the present petition, affidavit-in-reply is filed by the Respondent No. 3-Executive Engineer, Dahod District Panchayat, Roads & Building Division, which is at Page No. 33 and sur-rejoinder is filed by the Petitioner, which is at Page No. 43.
Learned Counsel, Mr. Thakkar has referred to the papers as well as some representations, which have been made by other residents (Page No. 40) to highlight that it is only at the instance of some complaints, the width of the road is sought to be kept at 5.5. Mtr. instead of 7 Mtr. He has also referred to the order passed by the Collector dated 21.02.2003 to support his submission that it is necessary that the width of the road should be more than 5.5 Mtr. He has also referred to the photographs and map, which was tendered to point out the exact situation.
Though the submissions have been made referring to the averments made in the petition as well as other documents, as could be seen from the reply affidavit filed that it is a matter of authority to consider about the width of the road (service road) and in the affidavit-in-reply filed on behalf of the Respondent No. 3, it has been specifically clarified as to the first aspect about the gradient of the approach road on both sides under pass in consultation with the Railway Engineer. Therefore, as rightly submitted, this aspect is not required to be considered.
Main emphasis of the learned Counsel, Mr. Thakkar is with regard to width of the approach of the road, for that also, in the said affidavit in Para No. 4, there is discussion as to how the width of the road is decided. In para No. 3 of the reply affidavit, it has been specifically stated that it is his private interest and no inconvenience or hardship is caused to anyone but only for a personal again, he has approached the High Court with the prayer. It is specifically stated in Para No. 3 of the reply affidavit that:
"The Respnt. No. 3 submits that so far as the Petitioner is concerned, he is a businessman and having factory in the residential area and is not at all caused any inconvenience or hardship but for some personal gain has approached this Hon''ble Court with a prayer to intervene."
On the aspect of width of the road, it is also specifically considered in Para No. 4, which reads as under:
"It is further stated that even present width of road laid down by Dahod Municipality towards Laxmi Mill from Dahod Chakaliya is 4.50 mtrs. It is stated that at present heavy vehicles are playing on the said road having width of 4.50 mtrs. Without any obstruction or hurdle and, therefore, construction of service roads having 5.5 mtrs. On both the sides of approach road would on the contrary ease the burden of traffic and, therefore, the contentions raised by the Petitioner in the memo of Special Civil Application are thoroughly baseless."
Rejoinder as well as photographs also make it very clear. In rejoinder in Para No. 2, it has been clarified with regard to this aspect about the width of the road. Clarifying that there was no service road prior to planning of the railway bridge on the approach road, meaning thereby, after providing this bridge, the movement of traffic is made smooth and, therefore, it is not necessary. Fuhrer, it has been specifically stated that:
"it is stated that the provision of 9 meter wide road as expected by the Petitioner is unheard of and such wide service roads are never provided on National Highways or Ring Roads or Expressway. It is further stated that while providing the service road, the Department has to consider various aspects such as availability of land, construction of road, obstruction of existing superstructure, land acquisition cost etc. and public interest"
Therefore, considering the aforesaid aspects, it is evident that there is no public interest but it is a private interest of the Petitioner, which is not found viable and on the contrary, the public interest suggests otherwise as explained in affidavit-in-reply.
Learned Counsel, Mr. Thakkar has also referred to the affidavit-in-reply of the Respondent No. 4, Chief Officer of Dahod Municipality to support his submission. Though this affidavit has been filed, it is required to be mentioned that in Para No. 5 of the said affidavit what he has referred to is only the traffic and as suggested for winding the width of areas but has not considered other aspects. It is also required to be mentioned that though such affidavit is filed by the Respondent No. 4, he has no business or authority to decide on the aspect of width of the road, particularly when, the Respondent No. 3, who is the Competent Authority for the purpose of Road & Building Division, cannot have any say in connection with the present issue. Therefore, the reliance placed by the learned Counsel, Mr. Thakkar upon the said affidavit is misconceived.
Submission made by the learned Counsel, Mr. Thakkar with regard to the representation made by other residents that at their instance because of such representation though width of the road was assured, it has been reduced is also misconceived. Reply affidavit, which is stated on oath cannot be brushed aside, which has clearly referred to the aspects about the public interest.
Therefore, considering the affidavit-in-reply, there is no substance in the present petition and the present petition cannot be entertained and deserves to be dismissed.
Accordingly, the present petition stands dismissed. Notice is discharged.