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2007 DIGILAW 493 (UTT)

Ishwar Singh Barthwal v. State of Uttarakhand

2007-09-26

J.C.S.RAWAT, RAJEEV GUPTA

body2007
Judgment Rajeev Gupta, C.J, Mr. M.S. Chauhan, Advocate for the petitioner. Mr. J.P. Joshi, Chief Standing Counsel for respondents Nos. 1 to 4 & 6. Ms. Anjali Bhargava, Addl. Standing Counsel (Central Govt.) for respondent NO.5. They are heard. 2. Petitioner Ishwar Singh Barthwal has filed this writ petition, styled as 'Public Interest Litigation', for the following reliefs: "I. Issue a writ order or direction in nature of certiorari quashing the impugned order dated 16-3-2004 & 24-12-2005 passed by the respondent NO.2 & 4 respectively and annexed as Annexure NO.1 & 9 to this Writ Petition. II. Issue a writ or order or direction in the nature of mandamus directing the respondents to curb from chopping the trees on diverted root and against the will of the villagers and as well as the expert report and save the environment. III. Issue, any other order or direction which this Hon'ble High Court may deem fit and proper in the facts and circumstances the case. IV. Award cost of the petition to the petitioner." 3. The petitioner, in substance, is aggrieved of the realignment of the road connecting Tilwara and Bawai. 4. Under the Prime Minister Village Road Scheme (PMGSY), road was sanctioned between village Tilwara and Bawai. Initially, the alignment of the road was proposed as TilwaraKumoli-Saud-Bhatgaon-Bawai. On the representation / complaints about the alignment of the road, a Committee was constituted by the State Government and, on the report of the said Committee, the road was realigned as Tilwara-Malkoti-Karandhar-Badrikot-Dangi-KoilpurGunaun-Bengi-Chopra-Saudbhat-Bawai. 5. Since the petitioner is resident of village Kumoli and, after the realignment, the said road will not be via village Kumoli, the petitioner has filed this writ petition styled as 'Public Interest Litigation'. 6. Respondents Nos. 1 to 3 have filed counter affidavit, wherein the averments made in the writ petition have been categorically denied. Para 3 of the counter affidavit reads as follows: "3. That before giving parawise reply to the above noted writ petition it is expedient in interest of justice to give brief facts of the case as well as the provisions of law relating to the present controversy. (a) That under PMGSY (Pradhan Mantri Gram Sadak Yojana), first lot, for the Phase-II, works were sanctioned by the Ministry of Rural Development, Govt. (a) That under PMGSY (Pradhan Mantri Gram Sadak Yojana), first lot, for the Phase-II, works were sanctioned by the Ministry of Rural Development, Govt. of India on the basis of brief proposal giving approximate length, estimated cost based on average cost per Km., approximate number of CD works with an average cost of 0.21 lacs per Km. prior to submission of the project. No survey work was done as is evident from the reports of the Commanding Officer, G.R.E.F. Er. Lonia as his report clearly states that village Bawai cannot be connected by 15 km. length via Kumoli . After obtaining the sanction from the Ministry of Rural Development, Govt. of India, detailed survey work was taken up by Magot Engineering & Consultants Pvt. Ltd. and during survey it was found that PWD Light Vehicle Road (LVR) cannot be followed beyond 4 kms as there are too many hairpin bends and the width and gradient required for motor road will not be available along the LVR mainly at places above and below the hairpin bends. (b) That as per Guidelines, Villages with a population of 1000 and above are to be connected first gradually going down to a population of 250 or more in that order of priority. In the present case village Bawai having a population of 1329 (1991 Census) was targeted for providing connectively and survey work for the road was taken up accordingly. Prior to the survey no alignment was sanctioned by any authority, hence diversion of sanctioned alignment was never done. Since the name of village Kumoli was somehow included in the name of the road the people of Kumoli started creating problems unnecessarily, though the road under construction eventually connect Kumoli village as per PMGSY norms. As per PMGSY guidelines the habitation, which lies within a walking distance of 1.5 kms., is deemed to have been connected. (c) That the amount shown in the sanction accorded by the Ministry of Rural Development, Govt. of India is only a tentative amount and the actual sanctioned amount will be treated as Rs. 342.63 lacs as scrutinized by State Technical Agency i.e. IIT, Roorkee, appointed by National Rural Development Agency, the technical wing of the Ministry of Rural Development, Govt. of India." 7. The respondents' specific case is further reflected in paras 10,14,16,17,19,20,21, & 25 of the counter affidavit, filed on behalf of respondents Nos. 342.63 lacs as scrutinized by State Technical Agency i.e. IIT, Roorkee, appointed by National Rural Development Agency, the technical wing of the Ministry of Rural Development, Govt. of India." 7. The respondents' specific case is further reflected in paras 10,14,16,17,19,20,21, & 25 of the counter affidavit, filed on behalf of respondents Nos. 1 to 3, which read as follows: "10. That the contents of para 7 of the writ petition wrong misconceived and are denied. It is submitted that the report of the Sub District Magistrate does not reflect the true picture as the roadwork was tendered by Project Management Unit PMU (PMGSY) of the Ministry of Rural Development, Govt. of Uttaranchal, on 08/10/02, which was accepted on 02/01/03 and the agreement was made on 15/01/03. The road was sanctioned by the Ministry of Rural Development, Govt. of India on a short proposal and the road was sanctioned. The actual survey work and estimation was taken-up later by Magot Engineering & Consultant Pvt. Ltd. in the presently approved alignment, so question of changing the alignment does not arise. Furthermore the village Kumoli will be incidentally connected as per PMGSY norms. Also at the approved alignment, when the road will be constructed, the road will terminate within 600 meters of village Bhawai, which happens to be the target village for this road and as per PMGSY norms the village will be connected. 14. That the contents of para 11 of the writ petition are wrong misconceived and are denied. It is submitted that the alignment has been approved after considering all the important facts by the component authority. When the village people of Kumoli objected to the alignment approved by the Secretary, Rural Development, the Principal Secretary, Forest and Rural Development got it inspected again and after considering the inspection report dittoed the already approved alignment (Annexure NO.9 of the writ petition). 16. That the contents of para 13 of the writ petition are wrong misconceived arid are denied. It is submitted that the road was neither diverted nor 20,000 trees were chopped. The proposal was to connect the target village Bawai by the shortest route and only 2089 trees were felled and large number of trees of smaller diameter and a small number of trees are of any significance. It is submitted that the road was neither diverted nor 20,000 trees were chopped. The proposal was to connect the target village Bawai by the shortest route and only 2089 trees were felled and large number of trees of smaller diameter and a small number of trees are of any significance. Whereas if the PWD LVR via Kumoli would be constructed, more number of trees with larger diameter would have to be cut as may be seen from General Manager, Magot Engineering & Consultants Pvt. Ltd. (UIDP) report. True photo copy of the Inspection Report dated 26th November, 2003 is being filed herewith and marked as Annexure No. CA - 3 to this affidavit. 17. That the contents of para 14 of the writ petition are wrong misconceived and are denied. It is submitted that after considering the representation and facts, it was found that the road could not be constructed along the L VR and it would not connect the target village Bawai within the sanctioned length. 19. That the contents of para 16 of the writ petition are wrong misconceived and are denied. It is submitted that as no diversion has been made, the alignment was selected after considering all the facts and based on Geological Report with soul aim to provide connectively to the target village Bawal True photocopy of the Geological Report is being filed herewith and marked as Annexure No. CA-4 to this affidavit. . 20. That the contents of para 17 of the writ petition are wrong misconceived and are denied. It is submitted that the people of the villages agitated did not come under the purview of the connectivity at that time, in accordance with PMGSY guidelines, since the population of those villages where much below the required norms. Moreover, as stated earlier, the road under construction eventually connects village Kumoli. 21. That the contents of para 18 of the writ petition are wrong misconceived and are denied. It is submitted that the number of trees felled is about 10% of the figure given in the petition and no diversion has been made as stated earlier. 25. That the contents of para 23 of the writ petition are wrong misconceived and are denied. It is submitted that the number of trees felled is about 10% of the figure given in the petition and no diversion has been made as stated earlier. 25. That the contents of para 23 of the writ petition are wrong misconceived and are denied. It is submitted that the earlier report of the District Magistrate becomes insignificant ' as there report does not mention that the target village Bawai can be connected as per GMGSY norms constructing 15 kms long road via Kumoli." 8. Mr. M.S. Chauhan, the learned counsel for the petitioner vehemently argued that the respondents have changed the alignment of the road under the influence of the private contractor, who is entrusted with the work to construct the road and it will not serve the interest of the persons residing in the villages of that area. 9. Mr. J.P. Joshi, the learned Chief Standing Counsel for respondents NO.1 to 4 & 6, on the other hand, submitted that initially the alignment of the road was proposed via village Kumoli without undertaking a detailed survey and without considering the feasibility of the said alignment. The learned Chief Standing Counsel further submitted that after the receipt of the report of the committee constituted by the State Government, the realignment of the road was found necessary and, as such, the Government has sanctioned the realignment and the same has been approved by the Ministry of Rural Development of the Union Government. 10. A perusal of the record reveals that the initial proposal for the construction of the road via village Kumoli was submitted without considering the feasibility of the alignment of the road. The true picture of the road work came into light when the alignment was got surveyed by the Project Management Unit (PMGSY) of the Ministry of Rural Development, Government of Uttarakhand and a detailed alignment was submitted to the Government in which the road was realigned as Tilwara-Malkoti-Karandhar -Badrikot-Dangi-KoHpur -Gunaun-Bengi-Chopf a-Saudbhat Bawai. The villagers of Kumoli made representation in respeyt of the diversion of the aforesaid road and the Government constituted a Committee to re-examine the alignment of the said road. Annexure NO.4 to the writ petition reveals that the Committee constituted by the Government submitted its report recommending the realignment of the road without connecting village Kumoli. The villagers of Kumoli made representation in respeyt of the diversion of the aforesaid road and the Government constituted a Committee to re-examine the alignment of the said road. Annexure NO.4 to the writ petition reveals that the Committee constituted by the Government submitted its report recommending the realignment of the road without connecting village Kumoli. The villagers of Kumoli again made a representation to the Chief Secretary, Government of Uttarakhand objecting the realignment of the said road. The Principal Secretary, Forest and Rural Development got it inspected again. After considering the report of the Committee as well as the other expert officers appointed in this behalf, the Government, vide order dated 16-03. 2004 (Annexure NO.9 to the writ petition), affirmed the realignment of the road as approved by the Secretary, Forest and Rural Development. Thus, the matter was examined again and again by the Government and their experts. Time and again the Government has come to the conclusion that the realignment recommended by the Expert Committee was correct. 11. On due consideration of the submissions of the learned counsel for the parties, we are satisfied that since the realignment of the road has been sanctioned by the State Government with the approval of the Union Government on the basis of the report submitted by the Expert Committee, the stand taken by the petitioner cannot be accepted. 12. That apart, what should be the alignment of the road in a given case is to be decided by the experts of the subject and, on their report, by the appropriate Government and the courts have no role to play in such matters. 13. As we do not find any ground for grant of the relief sought by the petitioner in the writ petition, the same is liable to be dismissed and is hereby dismissed. 14. No order as to costs.