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2015 DIGILAW 1219 (PAT)

Rajesh Chandra Jha v. State of Bihar

2015-09-17

CHAKRADHARI SHARAN SINGH, I.A.ANSARI

body2015
ORDER I.A. ANSARI, ACJ.:–Heard Mr. Swapnil Kumar Singh, learned Counsel, appearing for the petitioner, and Mr. P.N.Shahi, learned Additional Advocate General, appearing for the respondent Nos. 1 to 6. We have heard also Mr. S. N. Pathak, learned Counsel, appearing for the respondent No. 7. Interlocutory Application No. 7825 of 2015: 2. By this Interlocutory Application, Shri Adesh Titarmare, who is respondent No.4, District Magistrate, Bhagalpur, has prayed for exemption from personal appearance today. Mr. Shyamal Kishore Pathak, Additional Collector. Bhagalpur, has appeared in person. 3. Having considered the reasons, assigned by Shri Adesh Titarmare, who is respondent No.4, District Magistrate, Bhagalpur, for his inability to appear before the Court, we, in the interest of justice, exempt the personal appearance of Shri Adesh Titarmare, who is respondent No.4, District Magistrate, Bhagalpur. C.W.J.C. No. 17571 of 2014: 4. Appearing on behalf of respondent No.7, namely, National Highway Authority of India, New Delhi, Mr. S.N.Pathak, learned Counsel, has furnished to us a letter, dated 16.09.2015, whereby the Regional Officer of the National Highway Authority of India, Bihar, has informed that the road, in question, had not been entrusted to the respondent No.7, National Highway Authority of India, for repairing or reconstruction. 5. From what have been pointed out, it is clear that respondent No.7, National Highway Authority of India, is not a necessary party and, therefore, the name of the respondent No.7, National Highway Authority of India, is hereby directed to be struck off the record. 6. We have perused the writ petition, made under Article 226 of the Constitution, which has given rise to the present Public Interest Litigation. We have also perused the pleadings and materials on record including the counter affidavits filed by respondent Nos. 2, 3, 4, 5 and 6. 7. It transpires that a writ petition, which gave rise to C.W.J.C. No. 4839 of 2010, was filed in the form of Public Interest Litigation, which was disposed of by the order, dated 19.04.2010, by a Division Bench of this Court with certain directions and clarifications. 2, 3, 4, 5 and 6. 7. It transpires that a writ petition, which gave rise to C.W.J.C. No. 4839 of 2010, was filed in the form of Public Interest Litigation, which was disposed of by the order, dated 19.04.2010, by a Division Bench of this Court with certain directions and clarifications. The relevant directions/ clarifications, as given by the order, dated 19.04.2010, aforementioned, are extracted herebinbelow:— “These two writ petitions, which have been filed by the petitioners describing themselves as pro bono publico, basically relates to raising of the heights of the road as a result of which immense inconvenience is caused to the house owners in various cities and townships of the State of Bihar. This Court on earlier occasion on 26.3.2010 had recorded statement of Mr. P.K.Shahi, learned Advocate General, that the competent authorities of the State Government are deliberating to adopt either the Cold Recycling Method or the Hot Recycling Method. He was requested to come with an appropriate feed back and in this regard after due consultation with the experts. When the matter was taken on 8.4.2010, this Court proceeded to pass the following order: “We have been apprised at the Bar that the height of the roads in the city of Patna are being increased, as a consequence of which the shops and the houses are really likely to be inundated with the rain water, even at the slightest rain. True it is, on an earlier occasion, we directed to adopt either Cold Recycling Method or Hot Recycling Method and we have been told by Mr. P.K.Shahi, learned Advocate General that a decision shall be taken on the same by the competent authority after perusal of the report of the Engineer-in-Chief and his associates. But for the present what we have been told is quite shocking. In view of the aforesaid, let the Engineer-in-Chief of Road Construction Department and the Urban Development Department remain personally present at 2 P.M. on 19th April, 2010. The said authorities shall apprise this Court on what basis the contractors are doing this kind of work and on what basis the designs have been prepared by the authorities. We are absolutely conscious, we are not experts, but no expertise can be beyond what is visible to the eyes and totally counter to the common sense. .... …….. The said authorities shall apprise this Court on what basis the contractors are doing this kind of work and on what basis the designs have been prepared by the authorities. We are absolutely conscious, we are not experts, but no expertise can be beyond what is visible to the eyes and totally counter to the common sense. .... …….. …… We proceed to record the agreed suggestions, which are to be carried out: (i) The roads that have been constructed till today by raising the heights shall not be disturbed but appropriate method shall be adopted by taking recourse to scientific and sophisticated device as a consequence of which the rain water does not enter into the houses of the house owners and inhabitants of the area and no inconvenience is caused. (ii) When we have said scientific and sophisticated method that would include adequate drainage system which would not cause any inconvenience by introduction of such a system. (iii) All the authorities, namely, Road Construction Department, Urban Development Department, Public Works Department and the Municipal Corporation shall work in harmony and develop the pilot project by identifying such roads where either the Cold Recycling Method or Hot Recycling Method are to be introduced to ensure that the height of the roads are not increased. The said exercise of identification for incorporation in the pilot project in either of the modes shall be completed by 20th of June, 2010 positively. (iv) Till new methods are taken recourse to for the purpose of construction of the road appropriate and adequate measures shall be taken by constructing the roads in such a manner that the height of the roads are not increased ordinarily beyond the Plinth area and under no circumstances cause any inconvenience to the inhabitants of the locality. (v) Wherever the height of the road is increased as a result of which inhabitants are affected, they are at liberty to bring it to the notice of the Collector-cum-District Magistrate of the District who shall look into the same in quite promptitude and take appropriate action by bringing it to the notice of the experts. (v) Wherever the height of the road is increased as a result of which inhabitants are affected, they are at liberty to bring it to the notice of the Collector-cum-District Magistrate of the District who shall look into the same in quite promptitude and take appropriate action by bringing it to the notice of the experts. (vi) The notice inviting tender for repair, maintenance and construction of work shall carry the stipulations which have been incorporated herein so that the contractors who are assigned the work do not behave in their own manner creating inconvenience and disturb the life pattern of the citizens by increasing the height of the roads. (vii) Any contractor, who would deviate from the stipulations, shall be visited with the order of rescission of the contract and face such other penal consequence which shall be provided in the contract. We may hasten to add, the aforesaid terms and conditions have been recorded on the concession given by the learned Advocate General, Engineer-in-Chief of Road Construction Department and the Chief Engineer of Urban Development Department and the learned counsel appearing for the petitioners. …………...” (Emphasis is supplied) 8. The order, dated 19.04.2010, aforementioned, clearly spells out the issues raised in the Public Interest Litigation. 9. Thereafter, alleging, inter alia, that despite elaborate directions having been given in the order, dated 19.04.2010, the construction of the road was being carried away not in accordance with what had been agreed to by the respondents themselves and had accordingly been directed by the Court, another writ petition, in the form of Public Interest Litigation, was made, which gave rise to CWJC No. 1664 of 2012. 10. Having noticed that the issue, raised in the Public Interest Litigation, was in consequence of construction of elevated PCC cemented roads, the plinth level of houses, situated along the road, stood lowered and it was going to be adversely affected by water accumulation, more particularly, in monsoon, and, in this regard, directions had been given by the Division Bench in the case of Deepak Mukherji Vs. State of Bihar, reported in 2010 (3) PLJR 998 , on 19.04.2010, prohibiting construction of elevated PCC cemented roads, a Division Bench of this Court, on 16.05.2013, in CWJC No. 1664 of 2012, while disposing of the writ petition, noted as follows:— “………………..It is no more in controversy before us that the PCC cemented road in question was in fact being constructed in violation of the orders of the Division Bench with elevated height of approximately 10 inches. The District Magistrate informed us that no sooner his attention was invited to the issue along with the order of the Division Bench he sent necessary request to the concerned authorities of the State Government. He informs us in person that the works have now been stopped. The Division Bench in paragraph 5(v) authorised the District Magistrate to look into the grievance with promptitude and take appropriate action by bringing it to the notice of the experts. We clarify that the Division Bench did not restrain the District Magistrate from appropriate action awaiting action by the concerned at leisure. We clarify that upon satisfaction that the PCC cemented road was being constructed contrary to the orders of the Division Bench, the District Magistrate is required first to enforce his authority by immediately stopping the works and then bring it to the attention of the concerned. In so far as the present constructions raised in violation of the orders of the Division Bench are concerned, we are of the opinion that the Government vests powers in its officers in trust to discharge it in the best interest of the Government. Surely, the Government does not vest this power in trust to violate Court orders. If there is a violation of a Court’s order, liability has to be individual and not institutional normally. No abnormal situation has been pointed out to us. We therefore direct the Principal Secretary, Urban Development Department, to hold an enquiry with regard to the present elevated PCC cemented construction in light of the order of the Division Bench and fix individual responsibility. The financial loss occasioned to the Government by dismantling of the works done to the extent of violation of the Division Bench orders cannot be saddled with the Government alone. The financial loss occasioned to the Government by dismantling of the works done to the extent of violation of the Division Bench orders cannot be saddled with the Government alone. After prima facie fixation of responsibility in the enquiry the Principal Secretary, Department of Urban Development, will give a hearing to the concerned and then pass a reasoned and speaking order on this aspect. No further construction of PCC cemented road shall be made at the present location mentioned in the writ application. The facts as have emerged in the present case compel us to give further directions that the order of the Division Bench in the case of Deepak Mukherji (supra) has to be implemented throughout the State and every District Magistrate shall possess the same powers and duty as we have clarified the order of the Division Bench with regard to the District Magistrate, Patna. We may clarify that our order following the earlier Division Bench is restricted in its operation to the construction of PCC cemented roads raising height of the road above the plinth level of the surrounding houses. The submission that in absence of such elevated roads under the existing drainage system water logging may occur, does not impress us. The authorities cannot resort to short cut quick fix solutions contrary to law for overcoming damage to roads due to water logging, which itself is occasioned due to lack of adequate urbanised civic planning of which drainage is but an integral part. Experience to the residents of the capital city has shown that such elevated PCC cemented roads create more misery than they attempt to solve for those whose plinth level consequently falls significantly lower to the elevated PCC cemented road constructed later. We request learned Additional Advocate General 14 to furnish to the Registrar General of the Court by tomorrow a list of e-mail address of all the District Magistrates in the State of Bihar, so that this order may be communicated to all of them through e-mail by the Court immediately. Issues of deliberate disobedience of Court orders may arise if a citizen has to approach this Court again for the same relief invoking the contempt jurisdiction.” 11. Issues of deliberate disobedience of Court orders may arise if a citizen has to approach this Court again for the same relief invoking the contempt jurisdiction.” 11. Notwithstanding the fact that this Court had already noted, in its order, dated 16.05.2013, that the construction of the PCC cemented roads had proceeded in violation of the orders of this Court and, despite having known the subsequent directions, which were given by the order, dated 16.05.2013, aforementioned, it, now, transpires (not only from the grievances raised by the writ petitioner, but also from the counter affidavits filed by the respondent Nos. 2, 3, 4, 5 and 6) that the directions, which had been given by this Court, by order, dated 19.04.2010, aforementioned, in the presence of the Advocate General, Engineer-in-Chief, Road Construction Department and Chief Engineer, Urban Development Department, the guidelines, which had been issued, and the restrictions, which had been imposed, the guidelines have been ignored, restrictions have been defied and the directions have not been followed. 12. In our considered view, therefore, a prima facie case of commission of contempt of this Court’s directions, given by order, dated 19.04.2010, passed in CWJC No. 4839 of 2010, read with the directions given by the order, dated 16.05.2013, passed in C.W.J.C. No. 1664 of 2012, for repairing/construction/ re-construction of the road, in question, has been made out. 13. Coupled with the above, since the reconstruction of the road has been done by spending public money, and if such reconstruction has been done in violation of this Court’s direction, which we have indicated above, the money, which has been so spent, tentamounting to wastage, ought to be recovered from the persons, who were responsible for defiance and violation of the directions of this Court. This apart, such persons, as indicated hereinbefore, may be liable to pay for reconstruction, which may have to be carried out afresh in order to ensure that the roads, in question, are, ultimately, built in tune with law. 14. Situated thus, we hereby direct respondent No.1, namely, Chief Secretary to the Government of Bihar, to furnish to this Court, on or before next date, a complete list of those persons, with their respective addresses, who were involved in any capacity with the process of construction/reconstruction of the road, in question, and who may be accountable for the wrongs done to the public. 15. The personal appearance of Mr. 15. The personal appearance of Mr. Shyamal Kishore Pathak, Additional Collector, Bhagalpur, is dispensed with until further orders. 16. List this Public Interest Litigation for further order on 05.10.2015.