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2022 DIGILAW 450 (GAU)

Harendra Nath Roy v. Union Of India

2022-05-05

SOUMITRA SAIKIA

body2022
JUDGMENT : Soumitra Saikia, J. 1. This PIL is filed by the villagers of Kismat Hasdaha Part-II, III and Debottar Hasdaha Part-IV. These villagers claim to be the cultivators and social workers. The grievance of the petitioners raised before this Court by way of PIL is directed towards the change/alteration of the alignment of a portion of the National Highway No. 127(B) from its original alignment. The petitioners represented before the Deputy Commissioner, Dhubri and the National Highway Authorities. However, their representations not being attended to, the petitioners have approached this Court by filing the instant PIL seeking Writ in the nature of Mandamus and/or any other appropriate Writ, Order or Direction, directing the respondents not to divert the scheme of National Highway No. 127(B) from the earlier survey conducted in the year 2012 which if permitted will cause heavy loss and injury to the General Public including the villagers of Kismat Hasdaha Part-II, III and Debottar Hasdaha Part-IV. A further prayer made suspending for all operations of the respondents in connection with a diversion of alignment of National Highway No. 127(B) from the bridge of Shulibhangi to Dhelkhowa. 2. The National Highway Authorities, pursuant to a survey conducted in the year 2012 for construction of National Highway No. 127(B) demarcated the portion/area through which the National Highway was proposed to be constructed. The said area was earlier maintained by Assam PWD (NH Works), Government of Assam. Thereafter vide Gazette Notification bearing No. S.O.3866 (E) dated 08.12.2017, the stretch of National Highway No. 127(B) was handed over to the National Highway Authority. A feasibility of study was conducted through the Consultant Company, CE Testing Company Private Limited in the year 2015, feasibility Study/preparation of the DPR. The feasibility study conducted two alignments in the particular area in question; Alignment Option I- Newly proposed Bypass Alignment. Alignment Option- II Follow the existing National Highway. 3. A feasibility of study was conducted through the Consultant Company, CE Testing Company Private Limited in the year 2015, feasibility Study/preparation of the DPR. The feasibility study conducted two alignments in the particular area in question; Alignment Option I- Newly proposed Bypass Alignment. Alignment Option- II Follow the existing National Highway. 3. The comparative study between the Alignment Option-I (Newly proposed Bypass Alignment) and Alignment Option-II (Follow the existing National Highway) as submitted by the DPR Consultant, is available in the affidavit filed by the NHIDCL is extracted below for convenience:- Particulars Alignment Option-I (Newly proposed Bypass Alignment) Alignment Option II (Follow the existing National Highway) Length 1.840 Km 1.850 Km Design Speed 80 kmph to 100 kmph 65 kmph to 80 kmph Social Impact and Rehabilitation & Resettlement 6 nos of hutment 56 nos of commercial structures and 1 no of Mosque Cost (Rs.) 18 Cr. 22 Cr Merit/Demerits · Length is minimum compare to Option-II · Less Rehabilitation & Resettlement as only 6 nos of hutment structure is affected. · Entire green field alignment. Therefore, construction process will be quick and easier than · Future widening is difficult · Rehabilitation & Resettlement effect is maximum as 56 nos of commercial structures and 1 no of Mosque is affected. · Religious structure is to be affected. · During construction traffic management is difficult. 4. Some of the local residents submitted a representation before the Deputy Commissioner, Dhubri for realignment of the proposed National Highway No. 127(B) i.e. Alignment Option-II through the existing National Highway at the portion of Kalarhat Panchayat. The said stretch of National Highway was with the Assam Public Works Department (NH Works), Government of Assam. However on or upon comparative study conducted by the DPR Consultant, the authority decided to proceed with the Alignment Option-I (Newly proposed Bypass Alignment). The decision was taken in a review meeting dated 05.10.2017 and the same was conveyed to the Director General (Road Development) and Special Secretary, Government of India MORT&H, New Delhi vide communication dated 11.12.2017 (A copy of the same is available at Annexure-5 to the affidavit-in-opposition filed by the NHIDCL). Thereafter, representation was received by the Deputy Commissioner, Dhubri dated 04.09.2018 submitted by some of the villagers regarding the change of alignment of the National Highway No. 1217(B). Thereafter, representation was received by the Deputy Commissioner, Dhubri dated 04.09.2018 submitted by some of the villagers regarding the change of alignment of the National Highway No. 1217(B). The villagers represented that the proposed constructions of the National Highway No. 127(B) should be as per the Alignment Option-II (Follow the existing National Highway). This application was forwarded to the NHIDCL who however justified construction of the proposed the National Highway No. 127(B) through the Alignment Option-I. The Assistant Settlement Officer in its communication dated 27.08.2019 addressed to the Deputy Commissioner, Dhubri informed that after physical verification of the area for the newly proposed alignment of National Highway No. 127(B) on 27.10.2018 along with SDO (Sadar), Magistrate and Engineers of the Consultants, Newly submitted alignment (approved) was selected. Accordingly, the authorities concerned approved the new alignment i.e. Alignment Option-I for construction of that portion of the National Highway No. 127(B). 5. A counter-affidavit was filed on behalf of respondent Nos. 1, 4, 5 and 6. It is averred that the National Highway Authorities on the basis of the feasibility study and the detailed projected report prepared, selected the alignment of the proposed construction to be made through the alignment Option-I (Newly proposed Bypass Alignment). The State respondents through the Deputy Commissioner, Dhubri also took a similar stand supporting the contention of the NHIDCL that the proposed construction is to be made by following alignment option-I (Newly proposed Bypass Alignment). The said contentions are disputed by the petitioners, their reply affidavit contending that the reasons cited by the NHIDCL and the State Authorities of existence of Kabarsthan and Temple etc. are not supported in revenue maps and drawings. The petitioners allege that the change of alignment from alignment Option-II to the Alignment Option-I is at the behest of the private contractor and other interested parties for their personal gains and which in turn is likely to cause loss to the public exchequer and to the Government. It is, therefore, contended that the change of Alignment from Alignment Option-II to Alignment Option-I is arbitrary and colorable and should not be permitted. 6. We have heard the learned counsels for the parties. We have also carefully perused the pleadings on record. From the chart extracted above, it is seen that the respondents have taken decision to change from Alignment Option-II to Alignment Option-I because of several reasons. 7. 6. We have heard the learned counsels for the parties. We have also carefully perused the pleadings on record. From the chart extracted above, it is seen that the respondents have taken decision to change from Alignment Option-II to Alignment Option-I because of several reasons. 7. From a perusal of the chart, it is seen that in Alignment Option-I there is a requirement of re-settlement/rehabilitation for only 6(six) hutment. Whereas under Alignment Option-II, there are 56 numbers of commercial structures and one number of Mosque which will require rehabilitation/re-settlement. The cost projected under Alignment Option-I is Rs.18 Crore as compared to Rs.22 Crore under Alignment Option-II. That apart, the other merits and demerits brought out by the respondents are that under Alignment Option-I the length is minimum as compared to Alignment Option-II. The Alignment Option-I is entirely green field alignment and, therefore, construction process will be quicker and easier than Alignment Option-II. It is further mentioned that under Alignment Option-II, the respondents have stated that there is difficulty in respect of future widening and during the construction, traffic management would be difficult (as Alignment Option-II is through the existing National Highway). 8. The petitioners have not contended that the grounds for change of the Alignment from Alignment Option-II to Alignment Option-I are unfounded and non-existent. The petitioners contend that the entire change of alignment is only because of the vested interests of one-Ibrahim Ali Sk whose cellular phone tower erected over his land is likely to be affected/demolished, if the proposed construction is made through Alignment Option-II. The petitioners contend that it is only to protect the vested interests of Ibrahim Ali Sk that the respondents have shifted from Alignment Option-II to Alignment Option-I. The petitioners also contend that certain pillars were fixed to demarcate the area through which the proposed constructions was to be made as per Alignment Option-II and there was no complaint from any person at that point in time. As such, it is evident that the subsequent change of alignment option is only to protect vested interests of some persons and, therefore, not in public interests. The petitioners also dispute the averment of the respondents regarding the existence of any Mosque in the area covering Alignment Option-II. 9. As such, it is evident that the subsequent change of alignment option is only to protect vested interests of some persons and, therefore, not in public interests. The petitioners also dispute the averment of the respondents regarding the existence of any Mosque in the area covering Alignment Option-II. 9. The petitioners have in their reply affidavit made some suggestions as to how the proposed constructions is to be made by following Alignment Option-II by offering some technical suggestions in respect of proposed constructions of bypass. They have also alleged mala fide and vested interests of one-Ibrahim Ali Sk and that the departmental authorities are in league with some private individuals including the said Ibrahim Ali Sk in shifting the alignment of the proposed construction from Alignment Option-II to Alignment Option-I. However, it is seen that the said Sri Ibrahim Ali Sk or other persons against whom the allegations are made have not been arrayed as party respondent in the present proceedings. That apart, the allegations made are not supported by any credible materials which can be referred to. The technical suggestions offered by the petitioners, whether feasible or not, is not within the competence of this Court to decide and it would be in the interest of all concerned to leave such technical details to be decided by the respondents authorities and the experts responsible for undertaking the construction. It is also further grievance of the petitioners that the representations submitted by the petitioners before the Deputy Commissioner, Dhubri has not been attended to adequately. 10. In view of the above discussions, we do not find any merit in the prayers made in the PIL and, therefore, we decline to issue any specific directions to the respondents in terms of the prayers made. Since, the petitioners contend that they have also ventilated their grievances by representations before the Deputy Commissioner, Dhubri and which has not been attended to, we give liberty to the petitioners to approach the Deputy Commissioner, Dhubri for their grievance. If such a representation is filed within 15(fifteen) days from the date of this order, the Deputy Commissioner, Dhubri will decide on the representations filed after giving adequate opportunities of hearing to the petitioners and all other affected and connected parties and thereupon pass a speaking order in the said representation. 11. If such a representation is filed within 15(fifteen) days from the date of this order, the Deputy Commissioner, Dhubri will decide on the representations filed after giving adequate opportunities of hearing to the petitioners and all other affected and connected parties and thereupon pass a speaking order in the said representation. 11. A copy of the order passed by the Deputy Commissioner, Dhubri should also be furnished to the petitioners. 12. This PIL is disposed of in terms of the above. Costs easy.