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2024 DIGILAW 1519 (GUJ)

Mahavirsinh Jagatsinh Zala v. State Of Gujarat

2024-07-05

PRANAV TRIVEDI, SUNITA AGARWAL

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ORDER : Sunita Agarwal, CJ. 1. Heard learned counsels for the parties and perused the record. 2. The instant petition in the nature of Public Interest Litigation has been filed by one person who is claims to be ‘Ex-Sarpanch’ of Charodia Town, resident of Charodia, Taluka Dhandhuka, District Ahmedabad. It is stated that the petitioner and other residents of the Charodia Town are agriculturist. Because of the geographical situation of the town, during the rainy season, the water flow of Bhadar river as well as water ways of Vasna agriculture land is used to be flown from Vasna town to agriculture land of Charodia and under the bridge of Limbdi-Dhandhuka Highway, it passes ahead. At present, there are four small pipes which are in existence as an old structure of the road and the water flow used to pass from these four pipelines. The quantity of the water and the flow is very high and these four pipe lines are not enough to maintain the flow, ass a result of which, the excess water entered in the lands of Charodia town as well as Gauchar lands of the said town. 2.1. Because of the water spreading over the agriculture lands, the crops of agriculturist during rainy season are being damaged permanently. In the year 2015, when the petitioner was ‘Sarpanch’ of Charodia, he gave an application to the Deputy Executive Engineer of Dhandhuka to install new big pipes to resolve the issues faced by the agriculturist. Consequently, a report has been prepared and it was resolved to construct ‘two box culverts’ of the size of ‘3 x 3’ and the Executive Engineer, Road & Buildings Department, was requested to allot job number for the same work. Letters were written by the Executive Engineer to Superintending Engineer to seek permission. However, till the date of filing of the writ petition, for a period of more than seven years, nothing has been done. It is further stated that the respondent no. 5 has been allotted the work of construction of new road and that is why the petitioner along with other residents had approached the Executive Engineer, to take into account the issues of construction of ‘culvert’ while constructing the road so as to manage the water flow that it may not enter into the agricultural field of the villagers. 3. In the affidavit filed on behalf of the respondent no. 3. In the affidavit filed on behalf of the respondent no. 3 namely, the Executive Engineer, State Road Project Division, Rajkot, it is stated that the State Government through the Roads and Building Department granted an administrative approval for the project work vide order dated 22.05.2017 and the project in question pertains to improvement of the existing ‘Dhandhuka–Limbdi State Highway‘ that includes incidental civil works. The consultant engaged by the Roads and Building Department has submitted its Social Impact Assessment and Resettlement Action Plan to the State Government for preparation of the detailed project report, bid documents, monitoring engineering of the project in question. Numerous public consultation meetings were held with the project affected families/persons/elected representatives, community leaders etc. The aim of such public consultation meeting was to discuss the issues faced by such class of persons and to seek their objections/suggestion with regard to the proposed project in question. In the instant case, no objection or grievance have been raised with regard to the construction of the ‘box culvert’ in place of existing ‘pipe culvert’. A copy of the Resettlement Action plan forming part of the Social Impact Assessment and Resettlement action plan is appended with the said affidavit. A bid has been invited for the project in question on 13.08.2018. The technical and financial bid of the bidder namely, respondent no. 5 have been accepted. Schedule-2 of the technical bid envisaged the construction of the pipe culvert with two rows of 1200 milliliter diameter pipe in place of existing four rows of 600 millimeter diameter pipe culverts. A letter of acceptance dated 02.04.2019 has been issued by the office of Superintending Engineer, Project Implementation Unit, Gandhinagar to respondent no. 5 for execution of civil work pertaining to the project in question. An agreement in this regard has been arrived between the respondent no. 5 and the Roads and Building Department on 05.04.2019. The copies of letter of acceptance, the contract agreement and the notice to proceed with the work have been appended with the writ petition. It is clarified that feedback Infra is the entity that provides consultancy and monitoring of the project work of the State Government with regard to the project in question whereas, respondent no. 5 namely, ‘M/s. Prakash Asphalting and Toll Highways (India) Limited’, is the executing agency being the contractor for the civil works of the project in question. 3.1. It is clarified that feedback Infra is the entity that provides consultancy and monitoring of the project work of the State Government with regard to the project in question whereas, respondent no. 5 namely, ‘M/s. Prakash Asphalting and Toll Highways (India) Limited’, is the executing agency being the contractor for the civil works of the project in question. 3.1. With regard to the resistance and objection raised by the villagers, it is stated that the residents of village Charodia had resisted and objected to the execution of the project in question, as a result of it, the contractor had sent a communication dated 22.08.2020 to the Dhandhuka Police Station, seeking police protection during the construction work. The contractor could not lay the pipe culverts on account of resistance and obstruction raised by the villagers/residents of Charodia village consistently. 3.2. The proposed pipe culverts which are to be constructed as part of the project in question are lying idle at the spot in question. Certain photographs of unconstructed pipe culverts lying at the site in question has also been appended. It is stated that the project in question has been completed except the upgradation of the existing pipe culverts on account of constant resistance and obstructions raised by the residents of the village. The project in question envisaged the upgradation of the existing pipe culverts at the site in question. The decision to construct pipe culvert is based on various technical datas, on-site surveys and analysis by the experts, having an experience of being involved in the construction of the project. The proposed project to upgrade the existing pipe culvert has been ultimately accepted by the State Government. 4. As regards box culverts, it is stated that neither there is any proposal to construct a box culvert as part of the project in question, nor there was any proposal to install ‘pipe culvert’ in place of ‘box culvert.’ The submission of the petitioner in the writ petition that the contractor has modified the project and is trying to put pipe culverts in place of construction of ‘box culverts’ is, therefore, misconceived. The hydrological and hydraulic analysis for justifying the upgradation of the proposed pipe culverts at the site in question forming part of the project in question has also been brought on record as analysis report, which explains as to how the upgradation and installation of the proposed pipe culverts is feasible than the box culvert. It is lastly stated that respondent authorities are ready and willing to construct the proposed pipe culvert as has been envisaged in the project report and which has been ultimately sanctioned by the State Government for construction at the site of the project in question. 5. As against the above noted submissions from the affidavit of the competent officer, we may note the assertion made in the re- joinder, wherein the petitioner seeks to assert that installation of box culverts is imperative in place of pipe culverts and the same has been sanctioned for construction at the site in question. It is further stated that considering the existing pipe structure the overflow water is leading to the agricultural fields of the villagers and, therefore, the purpose is to restrict the flow of the water into the agricultural filed so that the land owners and farmers are not affected and they do not face loss. The concern was raised by the petitioner for this reason only. It is further stated that resistance of the petitioner for installing the box culvert is because box culvert will be able to move the water swiftly, whereas the agricultural remains, dry grass, sticks etc., will restrict flow of water in the pipe. It is then stated that the speed of flow of water in the pipe culvert is lesser than the box culvert, and there is an apprehension that water logging would damage the crop. The prayer has been made that all efforts be made to prevent erosion of agricultural lands of Charodia Town and Vasna Town. 6. Noticing the contentions of the petitioner in the writ petition and the averments made in the affidavit dated 08.01.2024 of the Executive Engineer, State Road Project Division, we may note that even the prayer of the petitioner is to ensure construction of culverts at the site in question as the existing culverts are not upto the mark and the replacement of existing culverts is imperative. The only insistence of the petitioner is that in place of pipe culverts, box culverts are to be set in place which would speed up flow of water and there would not be any chances of chocking at the culverts. 7. The grievance of the petitioner is based on the apprehension that on installation of pipe culverts, due to chocking and lesser flow of water from the culverts, the water would enter into the agricultural fields of the villagers. However, dealing with this apprehension, we may note the averments in paragraph ‘4.1.’ where, it is stated that existing four rows of 600 millimeter diameter pipe culvert is sought to be replaced with two rows of 1200 millimeter diameter pipe. Though, we are not experts to ascertain the feasibility of the culverts at the site in question, but from a bare reading of paragraph ‘4.1’, it is evident that diameter of the existing culverts would be increased to double, which would eventually increase flow water. 7.1. Moreover, the project report has been prepared by the technical experts and it is not possible for us to evaluate the technical experts report such as hydrological and hydraulic analysis report so as to arrive at a different conclusion then what has been arrived by the experts who have conceived and approved the project in question. 8. The fact remains that the pipe culverts at the site in question which are sought to be laid down as per the project report should be such that the water flow is diverted and the water shall not enter into the fields of the agriculturist. This apprehension of the petitioner is required to be addressed by the Executive Engineer of the project in question who shall himself oversee the entire project and make sure that the apprehension of the petitioner and the villagers of Charodia Town as noted herein-above is addressed. 8.1. Due to onset of rain, we find fit and proper not to stall the project further and issue direction to the respondent no. 3 to ensure that the project is completed in a time bound manner, much before the rainy season is at its peak. 9. With the above observations and directions, the instant writ petition stands disposed of.