Satish Kumar Gupta & Others vs State Of Uttarakhand & Another

Sudhanshu Dhulia, J

This writ petition has been filed by the petitioners before this Court with the following prayers:-

"(a). Issue a writ, order or direction in the nature of Certiorari to call for the record and to quash the impugned advertisement dated 01.06.2019 issued by the District Magistrate, Dehradun, whereby, a notice has been published with regard to auction of R.B.M. settled in the river bed which is scheduled to be held on 10.06.2019 at 12:00 noon in the office of District Magistrate, Dehradun, whereby, for the removal of river bed materials from different rivers in District Dehradun, the interested persons are invited to participate in the open auction process, filed as Annexure No.1.

(b). Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and which may be passed in favour of the petitioner.

(c). Award the cost of writ petition to the petitioner."

The main concern of this Court was whether heavy machines are being used in the process of removing the river bed material and if it is so, it would be in violation of the River Training Policy, 2016. On 18.06.2019 following order was passed by this Court:-

"Rejoinder affidavit filed in Court today is taken on record.

The petitioners before this Court have challenged the advertisement dated 1.6.2019 by which under the present Uttarakhand River Training Policy, 2016, the river bed materials, which have collected on the river bed, has to be removed. It has also been contended by the petitioners that under the present Uttarakhand River Training Policy, 2016 under the disaster management plan such river bed materials have to be removed from the centre of the river bed and not from the sides of the river bed, a fact which is admitted by the learned counsel for the State. The petitioner also alleged that this has been done by the State in order to grant benefit to certain section of the mining lobby.

Considering the urgency of the matter, counter affidavit and rejoinder affidavit have been exchanged. The principal contention of the petitioners before this Court that since large quantity of river bed materials have to be removed from each lots, this cannot be done except by using heavy machineries.

Although in the present River Training Policy of 2016, it has specifically been stated in para 9 that river bed material will be lifted only manually by leaving 1/4th of the river bank and if at all the use of machinery is required, it will be done after the committee which has been appointed for the purposes grants such approval. In other words, it can be done only in very exceptional cases.

In the counter affidavit, there is no undertaking given by the deponent that the provisions of para 9 of the River Training Policy, 2016 will be followed in its letter and spirit. However, considering the urgency of the matter, it is directed that the District Magistrate shall file his personal affidavit giving an undertaking that the mining work will be done under his supervision and control and the provisions of River Training Policy shall be followed in its letter and spirit, more particularly para 9 where it is provided that only in exceptional circumstances the permission for use of machinery shall be given subject to recommendation of the committee. Let such an affidavit be filed by 24.06.2019.

Interim order dated 10.06.2019 is hereby vacated. This shall, however, be subject to the affidavit filed by the District Magistrate which must be filed positively before 24.06.2019.

List this case on 24.06.2019 in the daily cause list.

Let a certified copy of this order be issued within twenty-four hours on payment of usual charges."

Thereafter the District Magistrate, Dehradun filed his personal affidavit in the matter and apprised this Court that only in exceptional circumstances heavy machinery will be used, and therefore, on 25.06.2019 the following order was passed by this Court:-

"The only case of the petitioners was that the river bed material and the garbage disposal work is being done on the instructions of the State Authorities and the District Magistrate, Dehradun in violation of Uttarakhand River Training Policy, 2016. The principal contention of the petitioners was that in the garb of River Training Policy, large quantity of river bed material will be taken away by using heavy machines.

Counter affidavit was filed on behalf of the State denying the averments in the writ petition, but since in the counter affidavit it was not specifically stated that heavy machines will not be used, this Court passed the following orders on 18.06.2019:

"Rejoinder affidavit filed in Court today is taken on record.

The petitioners before this Court have challenged the advertisement dated 1.6.2019 by which under the present Uttarakhand River Training Policy, 2016, the river bed materials, which have collected on the river bed, has to be removed. It has also been contended by the petitioners that under the present Uttarakhand River Training Policy, 2016 under the disaster management plan such river bed materials have to be removed from the centre of the river bed and not from the sides of the river bed, a fact which is admitted by the learned counsel for the State. The petitioner also alleged that this has been done by the State in order to grant benefit to certain section of the mining lobby.

Considering the urgency of the matter, counter affidavit and rejoinder affidavit have been exchanged. The principal contention of the petitioners before this Court that since large quantity of river bed materials have to be removed from each lots, this cannot be done except by using heavy machineries.

Although in the present River Training Policy of 2016, it has specifically been stated in para 9 that river bed material will be lifted only manually by leaving 1/4th of the river bank and if at all the use of machinery is required, it will be done after the committee which has been appointed for the purposes grants such approval. In other words, it can be done only in very exceptional cases.

In the counter affidavit, there is no undertaking given by the deponent that the provisions of para 9 of the River Training Policy, 2016 will be followed in its letter and spirit. However, considering the urgency of the matter, it is directed that the District Magistrate shall file his personal affidavit giving an undertaking that the mining work will be done under his supervision and control and the provisions of River Training Policy shall be followed in its letter and spirit, more particularly para 9 where it is provided that only in exceptional circumstances the permission for use of machinery shall be given subject to recommendation of the committee. Let such an affidavit be filed by 24.06.2019.

Interim order dated 10.06.2019 is hereby vacated. This shall, however, be subject to the affidavit filed by the District Magistrate which must be filed positively before 24.06.2019.

List this case on 24.06.2019 in the daily cause list.

Let a certified copy of this order be issued within twenty-four hours on payment of usual charges."

Now a personal affidavit has come from the District Magistrate, Dehradun Sri S.A. Murugesan, where in para 3 it has been stated as under:-

"3. That the deponent/answering respondent undertakes that the R.B.M./Garbage Disposal work will be done under the supervision and control of the deponent/answering respondent and the provisions of the River Training Policy shall be followed in its letter and spirit and in only exceptional circumstances the permission for use of the machinery shall be given subject to recommendation of the Committee."

Prima facie therefore the work is being done in accordance with law, subject to the report of the District Magistrate, Dehradun which shall be filed before this Court after the completion of the work.

List this case after six weeks in the daily cause list."

Now the petitioners have filed an affidavit stating that in spite of orders of this Court, the respondents are using the heavy machineries for removing the river bed material.

All the same, this writ petition cannot be monitored by this Court on daily basis. In case the petitioners are still aggrieved, they may file either a public interest litigation apprising the court of all the relevant facts, including what has been stated before this Court, but considering now that an affidavit has been filed by the District Magistrate, Dehradun who is a responsible officer of the State Government where he has assured the Court that heavy machineries will be used only in exceptional cases and the same statement has also been made by the learned State Counsel before this Court, there is no need to pass any further orders in the matter. It is also made clear that in case there is a disobedience of an order of this Court or non-compliance of an undertaking given before this Court, the petitioners would always have the remedy to file a contempt petition before the Court.

As of now, however, nothing further needs to be done in the case. The writ petition stands disposed.