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Himachal Pradesh High Court · body

2018 DIGILAW 120 (HP)

Court On Its Own Motion v. State Of H. P.

2018-01-10

SANDEEP SHARMA, SANJAY KAROL

body2018
JUDGMENT Sandeep Sharma, J. - Taking suo motu cognizance of communication sent by Shri Des Raj Mahajan, resident of village Kharshal, Post Office Jhalta, Tehsil Jubbal,, District Shimla, alleging therein that funds provided under Schedule Caste Component Plan (for short ''SCCP'') for construction of road for "Harijan Basti Kharshal" under Head 5054-04-789-01 SCCP at the approximate cost of Rs. 67,31,605/- have been utilized for the construction of road to benefit some of politically influenced people of upper castes of same village, this Court treated the same to be Public Interest Litigation and called upon learned Additional Advocate General to have instructions in the matter. 2. Letter petitioner, who hails from Scheduled Caste Community, highlighted issue of diversion of funds for construction of road specifically meant for providing access to the area where there is concentration of people belonging to a community hailing from the caste. Letter petitioner also alleged that funds have been diverted to cater the need of residents of people belonging to the upper castes. 3. Superintending Engineer, 14th Circle, Rohru, in his affidavit has admitted that road; namely; "Harijan Basti Kharshal" was proposed to be constructed in the year 2011 and accordingly survey of the road alignment was conducted in the said year. Aforesaid official has also admitted that the budgetary provision was made by the Government under SCCP in annual budget of 2014-15 and budgetary provision of Rs. 67 lacs was made for the construction of aforesaid road. 4. Few land owners belonging to non-scheduled caste categories gifted their land in favour of department for construction of this road and duly executed gift deeds in favour of department and accordingly till date a length of road 0/00 to 1/300 Km. has been constructed and passed for vehicular traffic by Road Fitness Committee in the month of June, 2017 and now the remaining length of road about half kilometer remains to be constructed to benefit the targeted habitation residing in village "Kharshal", whose beneficiaries are Scheduled Caste people including the petitioner. It has further been stated in the affidavit that on the alignment of road beyond Km. 1/300 the land belongs to Scheduled Caste persons of village "Kharshal", who are not willing to part with their land for the construction of the road. The reason for their reluctance to gift the land for this purpose is that the length of road is very short. 1/300 the land belongs to Scheduled Caste persons of village "Kharshal", who are not willing to part with their land for the construction of the road. The reason for their reluctance to gift the land for this purpose is that the length of road is very short. The respondents-department categorically stated in its affidavit that they are willing to construct the road up to village "Kharshal" from Km. 1/300 to 1/795 in case the villagers gift their land for this purpose. 5. Taking note of aforesaid submissions made by Superintending Engineer, 14th Circle, Rohru, this Court directed the Secretary, District Legal Services Authority, Shimla (for short ''DLSA'') to personally visit village "Kharshal". The Secretary, DLSA, in compliance to orders passed by this Court, visited the spot alongwith concerned authorities and submitted its report. 6. As per report, expenditure for construction of link road was to be done from the SCSP (Scheduled Caste Sub Plan) Head. The Secretary, DLSA has categorically stated that land beyond particular point could not be constructed by the HPPWD, since people belonging to Scheduled Caste community refused to gift their land for the construction of remaining length of the disputed road (measuring approximately 600 meters). It has further been reported that residents of area belonging to Scheduled Caste community are reluctant to donate their land. It has further been reported that statement of petitioner was recorded on 5. 9. 2017, in which he alleged that it was well within the knowledge of HPPWD Officers, being local residents, before commencement of construction work of the road that the residents of Harijan Basti shall not provide their land beyond particular point and thereafter, PWD authorities started the construction work of the road in dispute from particular point by utilizing funds under SCCP head, without associating or taking into confidence the residents of Harijan Basti. Now the demand of the residents of Harijan Basti including the petitioner is that since they will not gift their land beyond particular point, the disputed road should be diverted so as to connect the same with KatindaGiltari road through the land belonging to Forest Department, because in that case they will have a circular road to their Basti. In this regard, Executive Engineer submitted before Secretary, DLSA that aforesaid demand of the residents of Harijan Basti can be fulfilled only if requisite Forest clearance is obtained, as the land belongs to Forest Department. In this regard, Executive Engineer submitted before Secretary, DLSA that aforesaid demand of the residents of Harijan Basti can be fulfilled only if requisite Forest clearance is obtained, as the land belongs to Forest Department. 7. After having noticed aforesaid report submitted by the Secretary, DLSA, this Court directed the respondents-Department to explore the possibility of construction of road for "Harijan Basti Kharshal" through Forest land. On 30. 11. 2017, learned Additional Advocate General informed this Court that if the villagers do not donate their land, road from an alternate site can be constructed, which, however, shall be subject to obtaining clearances under the environmental laws of the land. Accordingly, on the request having been made by learned Amicus Curiae, Regional Director, Ministry of Environment, Dehradun and Ministry of Environment to the Government of India through its Secretary were impleaded as party respondents. 8. Today, during proceedings of the case, Shri Vikas Rathore, learned Senior Penal Counsel representing respondents No. 8 and 9 placed on record communication dated 9th May, 2016 sent by the Conservator of Forests, Ministry of Environment, Regional Office, Dehradun addressed to Principal Secretary(Forests), Government of Himachal Pradesh to demonstrate that proposal for diversion of 1. 1338 ha of forest land in favour of HPPWD for the construction of link road to village "Harijan Basti Kharshal" (Kms. 0/00 to 570), within the jurisdiction of Rohru Forest Division, District Shimla, H. P. has been accepted and in this regard approval in principal has been granted. 9. Since Government of India has already accorded approval for diversion of forest land required to be used for construction of link road to village "Harijan Basti, Kharshal", this Court hopes and trusts that necessary action shall be taken by the authorities i. e. HPPWD for construction of road in question, as has been taken note above. Authorities responsible for constructing road has repeatedly informed this Court that since funds stands allocated for the construction of road in question, necessary steps shall be taken for construction of road through forest land after obtaining necessary permission from the Ministry of Environment, Forests and Climate Change, for diversion of forest land. 10. Authorities responsible for constructing road has repeatedly informed this Court that since funds stands allocated for the construction of road in question, necessary steps shall be taken for construction of road through forest land after obtaining necessary permission from the Ministry of Environment, Forests and Climate Change, for diversion of forest land. 10. Consequently, this Court deems it fit to close the present proceedings with the direction that the Executive Engineer, HPPWD (B&R) Division, Jubal, who had submitted before the Secretary, DLSA that link road can be made to village "Kharshal" through forest land subject to approval of Government of India, shall ensure that road in question as agreed interse parties during spot visit conducted by Secretary, DLSA shall be completed within a period of six months from the passing of this order. 11. Needless to say since road in question has to be constructed through forest land, which belongs to Government of Himachal Pradesh, the petitioner as well as other villagers/residents hailing from Scheduled Caste community shall not be called upon to execute gift deeds qua the land, if any. 12. We also wish to place on record appreciation qua the efforts put in by Mr. Vikrant Thakur, Advocate, Amicus Curiae, who, on the instructions of this Court, contacted letter petitioner and obtained necessary feed back. 13. Registry is directed to send a copy of this judgment to the Superintending Engineer, HPPWD, Rohru, District Shimla, Executive Engineer, HPPWD, Jubbal, District Shimla, H. P. Secretary, Ministry of Environment Forests & Climate Change, Government of India, New Delhi and Conservator of Forests, Ministry of Environment Forests & Climate Change, Government of India, Regional Office, Dehradun for necessary action on their part as well as to the letter petitioner to enable him to take follow up action with the concerned authorities.