Karnataka High Court
B. Sakarama Somayaji vs The Assistant Commissioner, ... on 29 October, 1991
Equivalent citations: AIR1992KANT364, ILR1992KAR2042, AIR 1992 KARNATAKA 364, (1992) ILR (KANT) 2042
ORDER
1. Hear. Issue rule, and by consent taken up for hearing.
2. The writ petition is essentially one to advance the cause of public, who are adversely affected by the collapse of a bridge in Beloor village of Kundapura taluk. It is stated that there are about 50 to 60 houses and there is a river called Hire Hole flowing between the said village and Achalady village. Though the river dries up during summer it overflows during rainy and winter seasons. According to the petitioner he had put up a wooden bridge across the aforesaid river which was more than 150 feet in length and 4 feet in width. The bridge was being used for carrying head loads, men and cattle during rainy and winter seasons. This bridge was resting on wooden props which were being replaced as and when required. This bridge was the lifeline for the residents of the village Beloor in Kundapura taluk; similarly it formed the lifeline for the residents of the village situated on the other side of the river. The vegitation on the banks of the river were so thick that it prevented the soil erosion during rainy season. According to the petitioner, any soil excavation in the river would cause soil erosion and damage the bridge.
3. It seems 5th respondent obtained no objection certificate ('NOC' for short) from the Tahsildar (2nd respondent) for the removal of the sand from the fiver bed. NOC was issued without any enquiry and when it came to the knowledge of the petitioner's family, his brother filed a petition before the Assistant Commissioner and the Tahsildar, pointing out that the removal of the sand would adversely affect the bridge and the bridge was likely to collapse. A copy of the petition is found as Annexure-A to the writ petition. In the petition it was pointed out that 5th respondent was removing sand from the river bed with several lorries and objections of the petitioner was not being heeded by any one. The petitioner also filed an appeal before the Assistant Commissioner under S. 49 of the Karnataka Land Revenue Act, 1964, against the grant of NOC to 5th respondent explaining the damage that would be caused to the bridge by the removal of the sand from the river bed. The grant of NOC was also attacked as illegal. This appeal was filed on 10-5-1991. The danger to the bridge was also brought to the notice of the Taluka Magistrate, Kundapura by one Anandaram Somayaji. It seems similar petitions were sent to 4th respondent -- Senior Geologist, Department of Mines and Geology, Mangalore, but no action was taken. The villagers, along with the petitioner, observed a dharana near the bridge on 14-5-1991, which was intimated to the Taluka Magistrate by Anandaram Somayaji (referred earlier), A copy of the said letter was also sent to the local M.L. As. The Kannada daily called 'Hosa Digantha'. which is being published regularly from Mangalore, reported the dharana and the danger to the bridge. A copy of the news item dated 25-5-1991 is found at Annexure-E. The need to have a permanent bridge for which the consumers have been agitating, is also highlighted in the said news item. It seems, 4th respondent sent an order only on 20-5-91 to the Circle Inspector of Police, Kundapura, pointing out that the permit issued to the 5th respondent was a temporary permit operative from 11-5-91 to 17-5-91 and requested the Circle Inspector of Police to stop further removal of the sand. According to the petitioner, 5th respondent had been removing the sand far earlier to 11-5-91 as is clear from the petition dated 8-5-91 itself and that the authorities failed to aet on the complaints lodged before them by the petitioner and others. The petitioner further avers that the Assistant Engineer at the behest of the third respondent (Chief Secretary of the Zilla Parishad) made a spot inspection and sent a report and that the spot inspection was made on 27-5-91. In this report the danger to the bridge was clearly pointed out by the Assistant Engineer due to the removal of the sand by 5th respondent. The estimated repair charges in case the bridge collapses was Rs. 35,000/- to 40,000/- according to the Assistant Engineer. A further representation was also made to the first respondent on 21-5-91 which was also not taken note of by the first respondent. In the result the bridge collapsed on 27-6-91. This fact was also brought to the notice of rcspondents-2 to 4. By the collapse of the bridge the villagers are undergoing great inconvenience, and their line of communication with the outside world has vanished. The petitioner has also produced copies of the news item published by the Indian Express dated 7-7-91. Similar news items were published in Udaya Vani and Kannada Prabha news papers. These highlight that the damage caused to the bridge by the removal of the sand and the negligence of the authorities in not preventing the removal of the sand. It is in these circumstances the petitioner seeks a direction to the respondents to construct a permanent bridge across the river Hire Hole before the ensuing rainy season.
4. On 25-7-91 the learned Government Pleader was directed to take notice on behalf of respondents-1, 2 and 4. Emergent notices were ordered to respondents-3 and 5. On 16-8-91 the respondents were directed to file objections within 2 weeks, by an order of this Court. The statement of objection is filed only by the 5th respondent and other respondents have not cared to comply with the direction of this Court. The fifth respondent has stated that the representations made to the authorities were with the sole intention to harass the said respondent and that the removal of the sand from the river bed in no way affected the bridge and that the fifth respondent was not responsible for the collapse of the bridge.
5. In absence of any statement of objection by the respondents 1 to 4, the averments of the petitioner that there was a report by the Assistant Engineer pointing, out the danger to the bridge by the removal of the sand will have to be accepted. Several representations made by the petitioner and others show that the danger to the bridge was anticipated far in advance by the villagers and the villagers were agitating to safeguard the bridge. A copy of the report of the Assistant Engineer dated 27-5-91 was placed before me at the time of argument which fully supports the facts averred in the writ petition. Therefore I am of the view that the collapse of the bridge was due to the removal of the sand from the river bed and that the villagers were agitating against the same. It is inevitable to conclude that in the circumstances of the case that the respondents 1 and 2 grossly erred in permitting the removal of the sand and they were entirely negligent in not considering the representations made to them by the petitioner and the villagers. The third respondent also has not shown as to what happened to the report of the Assistant Engineer dated 27-5-91 and what action was taken by the zilla parishad to prevent the collapse of the bridge.
6. The petitioner has asserted that the bridge was put up by him for the benefit of the villagers and the said assertion stands un-rebutted. Obviously the bridge stood dedicated to the villagers and the authorities owed a duty to the public fo maintain the bridge and see that no damage resulted to the bridge by anyone due to the action permitted by the authorities. In the instant case the permission given to the fifth respondent to remove the (sic) resulted in the collapse of the bridge. Whether the fifth respondent went beyond the permission given to him is entirely a different matter and it is for the aulhorilies to find out later due enquiry and if for any reason the said unauthorised action of the fifth respondent caused damage to the bridge the authorities may have to take different action against the fifth respondent. I am concerned here with the rights of the villagers and the loss of the bridge which the petitioner describes as the life-line of the villagers.
7. In State of Himachal Pradesh v. Umed Pam Sharma, the question pertained to the need of proper roads to the residents in a hilly stale. At page 851, the Supreme Court observed thus :
"The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in Art. 21 of the Constitution and in the facts of this case read in conjunction with Art. 19(1)(d) of the Constitution and in the background of Art. 38(2) of the Constitution every person has right under Art. 19(1)(d) to move freely throughout the territory of India and he has also the right under Art. 21 to his life and that right under Art. 21 embraces not only physical existence of life but the quality of life and tor residents of hilly areas, access to road is access to life itself. These propositions are well-settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constilutional obligation to provide roads for communication."
Thereafter Supreme Court observed that the High Court was justified in directing the State Government to carry out the construction of roads as quickly as possible within the sanctioned limits i.e., within the budget allocations. As to the scope of the High Court's powers exercisable under Art. 226, in this regard the Supreme Court observed at page 854 thus :
"In the instant case there has been at the highest a slow application of energy in the action by the executive. By the process of judicial review, if the High Court activises or energises executive action, it should do so cautiously. Remedial action in public interest must be with caution and within limits. Reading down the order in the manner we have indicated, in our opinion, the High Court has not transgressed the limits of its power.
So far as the first and second questions are concerned, In Bandhua Mukti Morcha v. Union of India, , this Court has . given guidance. One of us (Pathak, J.) speaking about the nature and extent of relief which has to be given in litigation where public interest was concerned, observed at page 161 of the report that there were certain fundamental constitutional concepts which need to be recalled, namely, the Comtitution envisaged a broad division of the power of the State between the legislature, the executive and the judiciary. Although the division is not precisely demarcaled, there is general ac-knowledgmenl of its limits, there is certain time-overlapping. It is for the legislature to legislate, the executive to implement and carry out that legislation and the judiciary to supervise. Affirmative actions are sometimes necessary to keep the judiciary in tune with the legislative intention. Having regard to the observations made in this case at pages 161 to 163 of the report in the light we read the present order, we do not think that the learned Judges of the Himachal Pradesh High Court have transgressed this jurisdiction of supervising executive action in view of the time taken to construct this road."
No doubt, that was a case where the construction of the road was sanctioned but there was slow progress in its implementation. In the instant case the question of sanction of the legislature as such does not arise because functions of the Zilla Parishad includes a duty to take up developmental works which further includes putting up of roads and bridges as per Chapter IX of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 ('the Zilla Parishad Act' for short). Under S. 182 V it shall be the duty of every Zilla Parishad to make reasonable provision for the construction, maintenance and repairs of district roads and bridges. The relief against the respondents-1 to 3 is essentially a compensatory relief sought by the petitioner on behalf of the villagers. In other words the villagers are to be compensated for the loss of bridge by directing respondents 1 to 3 to put up a new bridge. Either this Court may permit the villagers to put up their own bridge and direct rcspondents-1 to 3 to compensate the villagers and the petitioners, or direct respondents-1 to 3 themselves to put up the bridge. Having regard to the obligations of the Zilla Parishad as well as the nature of the construction involved in putting up of the bridge, it is more reasonable that the bridge in question should be put up by the Zilla Parishad and if the Zilla Parishad requires any funds in this regard the same shall have to be reimbursed or paid by the State Government since the earlier bridge collapsed due to the negligence of respondents-1, 2 and 4. This is not a case where a bridge is sought to he put up for the first time. In a situation where the public seeks putting up of a bridge for the first lime, in all probability the Court may not be in a position to direct the authorities to put up the bridge straightway. That involves several administrative and other considerations. The present situation, as already stated is altogether different. The benefit of the existing bridge is lost to the public altogether and this loss is mainly due to the negligent attitude and the inaction of the authorities.
8. In view of the above, this writ petition deserves to be allowed. Respondents-1 to 4 are directed to take immediate steps to restore the requisite bridge by putting up a new bridge across the river Hirehole in between Beloor village of Kundapura Taluk and Achalady village of Udupi Taluk expeditiously. The petitioner is entitled to his costs computed at Rs. 1,500/- which shall be paid by the first respondent.
9. Writ petition is allowed accordingly and rule made absolute.
10. Petition allowed.