Karnataka High Court
Sri. Prasad Vitthalrao Patil vs Union Of India on 4 August, 2022
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WP No. 100906 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 04TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.100906 OF 2022 (GM-RES)
BETWEEN:
1. SRI PRASAD VITTHALRAO PATIL
AGE. 32 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST: BELAGAVI.
2. SRI KIRAN RAMCHANDRA LONDHE
AGE: 46 YEARS, OCC: FARMER,
R/O: NANDIHALLI VILLAGE,
TAL. AND DIST. BELAGAVI.
3. SRI RAJENDRA VASANTRAO PATIL
AGE: 52 YEARS, OCC: FARMER,
R/O: NANDIHALLI VILLAGE,
TAL. AND DIST. BELAGAVI.
4. SRI PARSHARAM SURESH JADHAV
AGE. 39 YEARS, OCC: AGRICULTURE,
R/O: NANDIHALLI, TAL. AND DIST. BELAGAVI.
ANNAPURNA 5. SRI MARUTI DEVAPPA LOKUR,
CHINNAPPA AGE: 39 YEARS, OCC: AGRICULTURE,
DANDAGAL
R/O: NANDIHALLI, TAL. AND DIST. BELAGAVI.
Digitally signed by
ANNAPURNA
CHINNAPPA DANDAGAL
Location: HIGH COURT
OF KARNATAKA,
6. SRI DEVENDRA BABU PATIL
DHARWAD BENCH,
DHARWAD AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: NAGENHATTI, TAL. AND DIST. BELAGAVI.
7. SRI NARAYAN HANMANT JADHAV
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: NANDIHALLI, TAL. AND DIST. BELAGAVI.
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WP No. 100906 of 2022
8. SRI SIDRAI MARUTI PAWAR
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O. NANDIHALLI, TAL. AND DIST. BELAGAVI.
9. SRI LAXMAN KALLAPPA JADHAV
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. NANDIHALLI,
TAL. AND DIST. BELAGAVI.
10. SRI MARUTI VASUDEV UNDANE
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. NANDIHALLI, TAL. AND DIST. BELAGAVI.
11. SRI JOTIBA GOPAL UNDUNE
AGE. 64 YEARS, OCC: AGRICULTURE,
R/O. NANDIHALLI, TAL: AND DIST. BELAGAVI.
12. SRI KALLAPPA KRISHNA JADHAV.,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O. NANDIHALLI, TAL: AND DIST: BELAGAVI.
13. SMT.ASHWINI RAJARAM PATIL
AGE: 51 YEARS, OCC. AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST: BELAGAVI.
14. SRI SUBHASH TUKARAM PATIL
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. NANDIHALLI,
TAL. AND DIST. BELAGAVI.
15. SRI SATERI ANANT DHAMNEKAR
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST: BELAGAVI.
16. SRI MADHU LAXMAN PATIL
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
17. SRI SUDHAKAR KRUSHNAJI PATIL
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL. KHANAPUR,
DIST. BELAGAVI.
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WP No. 100906 of 2022
18. SRI MARUTI NARAYAN MELEGE
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
19. SRI PARSHRAM NARAYAN MELEGE
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
20. SRI SUBHASH TUKARAM PATIL
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
21. SRI PARSHRAM KRISHNA KUMBHAR
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
22. SRI PRAVEEN RAGHUNATH PATIL
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
23. SRI NAMDEV GUNDU SIDDANI
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST: BELAGAVI.
24. SRI SANGAPPA MAHADEV KUMBHAR
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
25. SRI SANTOSH NARAYAN PATIL
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
26. SRI VILAS WAMAN PATIL
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST: BELAGAVI.
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WP No. 100906 of 2022
27. SRI VISHNU MARUTI PATIL
AGE. 41 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST: BELAGAVI.
28. SRI SHANKAR LAXMAN PATIL
AGE. 43 YEARS, OCC. AGRICULTURE,
R/O. GARLGUNJI, TAL. KHANAPUR,
DIST. BELAGAVI.
29. SRI NAGAPPA BABU KUMBHAR
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST: BELAGAVI.
30. SRI GOPAL MURARI PATIL
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. GARLGUNJI, TAL: KHANAPUR,
DIST. BELAGAVI.
...PETITIONERS
(BY SRI D.RAVIKUMAR GOKAKAKAR, ADV.)
AND:
1. UNION OF INDIA
R/BY PRINCIPAL SECRETARY,
MINISTRY OF RAILWAY,
NEW DELHI.
2. THE GENERAL MANAGER
SOUTH WESTERN RAILWAY,
GADAG ROAD, HUBBALLI-580020.
3. SOUTH WESTERN RAILWAY
OFFICE OF THE DEPUTY CHIEF ENGINEER/III,
CONSTRUCTION, CLUB ROAD,
KESHWAPUR, HUBBALLI-580023.
DIST: DHARWAD.
...RESPONDENTS
(BY SRI M.B.KANAVI, ADV. FOR R.1
SRI AJAY U.PATIL, ADV. FOR R.2 & R3.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING THIS COURT TO, QUASH
ANNEXURE H-2 I.E. THE DECISION OF THE MEETING AMONG THE
MEMBERS OF THE PARLIAMENT TAKEN AT HUBALI, BEARING NO.O/L
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WP No. 100906 of 2022
CE/II/CN/UBL/SWR DATED 16-10-2021 INSOFAR AS IT RELATES TO
THE DHARWAD-KITTUR BELAGAVI NEW RAILWAY LINE AND SUCH
OTHER RELIEFS.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 28.07.2022, COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING.
ORDER
This writ petition is filed by the petitioners seeking for the following prayers.
"Wherefore, it is respectfully prayed that, this Hon'ble Court be pleased to:
A) Issue a writ, order or direction in the nature of Certiorari quashing Annexure H-2 i.e. the decision of the meeting among the members of the Parliament taken at Hubali, bearing no. O/o CE/II/ CN/UBL/SWR dated 16-10-2021 in so far as it relates to the Dharwad-Kittur Belagavi New Railway line;
B) Issue a writ, order or direction in the nature of Mandamus directing the respondents to consider the requests made by the petitioners vide Annexures D to D, to finalise the JKLM alignment shown in Annexure C, for the construction of new railway line between Desur village to K K Kop village for Belagavi to Dharwad via Kittur new railway line;-6- WP No. 100906 of 2022
C) Issue a writ, order or direction, directing the respondents not to dispossess the petitioners of the petition lands except by the procedure enjoined by the law;"
2. It is the case of the petitioners that the petitioners are the farmers cultivating the lands shown in the schedule of lands. The respondents expressed their intention to lay new railway line from Desur Village of Belagavi via K.K.Kop village of Belagavi to Dharwad. The proposed railway line starts from Desur village of Belagavi and passes through Prabhunagar, Garlgunji, Nandihalli, Nagenhatti, Ankalgi to meet K.K.Kopp village in Belagavi taluk and the said line is marked by letters 'ABCD', shown in the sketch prepared by the respondents in Annexure-C. The farmers have summoned by the respondent in their office and suggestions were solicited. The petitioners and farmers suggested the railway line shown by the letters 'EFGH' in Annexure-C wherein the lands of the petitioners are situated and the same was substantially accepted by the respondents. Railway line shown by letters 'ABCD' passes through black cotton soil, of multi crop potency, -7- WP No. 100906 of 2022 wherein the crops of sugar cane, paddy and all kinds of vegetables are grown. The 'ABCD' line in comparison with the suggested line EFGH/JKLM is longer by 3.5 Kms., and cost of construction is more due to Safe Bearing Capacity ('SBC' for shhort) of soil besides cost of acquisition is higher due to fertility of the lands. 'JKLM' pink line in the sketch prepared by the respondents passes through barren and rocky land thereby giving solid supportive SBC, which lessens the risk of railway track, in comparison with the proposed 'ABCD' track.
3. The petitioner submitted representation as per Annexures-D to D7 and recommendations was made by the Member of Parliament having concerned as per Annexures-E to E5. The respondents made a communication showing the participation and deliberation between the farmers and the respondents. When the things stood as narrated, all of a sudden at the behest of the Member of Parliament without there being any proper deliberation and application of mind and due to vested -8- WP No. 100906 of 2022 interest of the said Member of Parliament, who is holding more than two hundred acres of lands through kith and kins, adjacent to the proposed 'ABCD' line. The decision was finalized to adopt the 'JKLM' line of alignment. The decision taken to adopt proposed 'ABCD' line is not informed to the petitioners. The acts and deeds on the part of the respondents are prejudicial to the interest of the Union of India in general and formers. The decision taken by the respondents is unilateral. Hence, the petitioners have no alternative remedy except filing of this writ petition.
4. The respondents filed the statement of objections contended that the decision regarding railway route is taken based on the final location survey approved by the Railway Board dated 07.09.2021 and route is finalized based on the survey and taking into account the economic viability, technical feasibility, length of the route as well as the speed and curve aspect for running the trains on the route. Some of the farmers through Member -9- WP No. 100906 of 2022 of Parliament had given a representation requesting to check the feasibility of the alternate route between K.K.Kopp and Desur. During the meeting of the Member of Parliament with General Manager, South Western Railway, the feasibility of the alternative road was discussed and it was found that the alternative route is not feasible due to technical reasons and also involved more cost and having more curve and tunnels thereby cutting the speed of the trains permanently and it was decided to continue the earlier approved line and the Member of Parliament also accepted and given a letter to continue with the original sanctioned line.
5. It is contended that if the alternate route is taken into account, the sanction estimate of Rs.927.4 Crores increases to Rs.1179.3 Crores, which is excess by Rs.251.9 Crores and cost of project increases. The alternative route also involves high Bank which involves more extent of land acquisition cutting of depth of land of more than 25 meters high which is very risky for running
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WP No. 100906 of 2022 of trains. In addition to the above tunnel length of 3.825 Kms., to be constructed which involves very high & huge expenditure to approximately 230 Crores.
6. On verifying with the various parameters pertains to railway requirement it is found not feasible and costing more than the original estimate and there is a permanent hindrance to adopt higher speed of 160 Kms., per hour, which will remain as a defect till the existence of railway track. Hence the alignment 'JKLM' is found to be non technical and economical.
7. In the sanction route the dgree of curve is 0.85 in which maximum speed for trains permitted is 160 Kms., per hour (passenger 150 Kms. Per hour & Goods Trails 110 Kms., per hour). Whereas in the alternative route suggested by the petitioners, the degree of curve is 1.90 and the maximum speed permissible is 110 Kms., per hour (Passenger 100 Kms., per hour & Goods Train 60 Kms., per hour. It is cleared that the speed will lbe reduced from 160 Kms., per hour to 110 Kms., per hour.
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WP No. 100906 of 2022 It is contended that, the sanction work should be taken up early without any change of alignment. Preliminary notification for land acquisition is under preparation by KIADB, Dharwad and the land acquisition proceedings will be done as per the Land Acquisition Act, 2013. Hence, the respondents pray to dismiss the petition.
8. Learned counsel for the petitioners submits that, the petitioners-farmers, the Member of Parliament and members of the Gram Panchayat suggested and accepted pinked line alignment shown by letter 'JKLM' for construction of new railway line starting from Desur village to K.K.Kopp village in comparison with the proposed 'ABCD' line alignment and cross cutting, distance saving, time saving, lifetime fuel saving, is the best for the life of railway track. Due to very old rather solid soil based SBC. Further submitted that, pink line alignment shown by letters 'JKLM' was accepted and farmers given it with an understanding that, the new railway line would be only through 'JKLM' alignment and all of a sudden at the
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WP No. 100906 of 2022 instance of the Member of Parliaments who is having more than two hundred acres of land adjacent to the proposed track alignment has changed the plan and adopted the 'ABCD' alignment. The decision adopting 'ABCD' line alignment is unilateral and without any consent of the petitioners. He submits that all the experts and Member of Parliaments have visited and inspected 'ABCD' and 'JKLM line alignment and found that the best line of alignment in the interest of Union of India and farmers is 'JKLM' line alignment only. He further submits that, the proposed line the decision taken by respondent in regard to the proposed line is not in the interest of railway. Hence, on these grounds he prays to allow the petition.
9. Per contra, learned counsel for the respondents submits that, the earlier line is not suitable for the purpose of laying new railway line. The expert committee on visiting the spot and found that checking feasibility and technical fitness to the standard of railway requirement on verifying with the various parameters pertaining to railway
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WP No. 100906 of 2022 requirement it is found not feasible and costing more than the original estimate and there is permanent hindrance to adopt higher speed of 160 Kms., per hour, which will remains as defect till existence of railway line. The respondent has taken decision after consulting the experts and taken a decision. Hence, submits that, the decision taken by the respondents-authority is in accordance with law.
10. Heard and perused the records and considered the submissions of the learned counsel for the petitioners and respondents.
11. It is not in dispute that, the respondents have taken a decision to lay a new railway line/track from Desur village of Belagavi via K.K.Kopp villave to Dharwad. The proposed railway lines starts from Desur village of Belagavi and passes through Prabhunagar, Garlgunji, Nandihalli, Nagenhatti, Ankalgi to meet K.K.Kopp village of Belagavi Taluka.
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WP No. 100906 of 2022
12. Earlier railway authorities have proposed to lay line as marked by letters 'JKLM' as shown in the sketch prepared by the respondents. Later on respondents have taken a decision to lay railway line as per the letters 'ABCD' in the sketch map. The decision was taken and the route was finalized based on the survey and taking into the economical viability, technical feasibility, length of the route as well as speed and curve aspect for running trains on the route. If the route shown by the petitioners in letter 'JKLM' is taken into account the sanction estimate of Rs.927.4 Crores increases to Rs.1,179.3 Crores, which excess by Rs.251.9 Crores and the cost of the project increases and also involves high banks which involves more extent of land acquisition cutting of depth of land of more than 25 meters high which is very risky for running of the trains. In addition to the above, tunnel length of 3.825 Kms., to be constructed, which involves very high and huge expenditure.
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WP No. 100906 of 2022
13. The proposed new alignment of railway line is designed speed for 160 Kms., per hour. If the change of alignment is considered due to sharp curvature of curve the designed speed 160 Kms., per hour will come down to 100 Kms., per hour, which will remain as permanent constraint throughout existence of railway line. The railway route is selected by the experts based on the economical and technically feasible in terms of railway standards specifications. Further it is not in dispute that the persons involved in the project are having a vast knowledge and expertising in the filed of high development and maintenance and they have prepared a detailed project and report keeping in view of the relative factors etc.
14. The expert committee has taken a decision to lay alternative line. It is for the experts to take whether particular alignment would subserve larger public interest. In such matters, the scope of judicial review is very limited. Having regard to the laying of railway project, it is
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WP No. 100906 of 2022 cleared that the competent authority on the basis of the feasibility has taken a decision. The Hon'ble Apex Court in the case of Union of India Vs. Kushal Shetty reported in AIR 2011 SC 3210 has held in paragraph No.24 of the said judgment, which reads as under:
"24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the filed of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the filed of highways. It comprises of persons having vast knowledge and expertise in the filed of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after through study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would
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subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 act has been established nor the charges of malice in fact has been proved. Therefore, the order under challenge cannot be sustained."
(Emphasis supplied)
15. In the case of Subhashgir Kushalgir Gosavi Vs. The Special Land Acquisition Officer and others reported in AIR 1996 SC 3169, the Hon'ble Supreme Court while dealing with the notification under Section 4 of the Land Acquisition Act has observed in paragraph No.3 held that, it is for the Government to take a decision and it is not for the Court to decide as to which place more convenient. Since the Government have taken a decision that acquiring the land for extension for the bus stand and bus depot is in the public interest, it cannot be said that the exercise of the power is arbitrary.
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WP No. 100906 of 2022
16. Admittedly, at the cost of repetition the railway authorities consisting of experts in the filed and they examine matter and recommend to the concerned authorities that, a particular place would best suited for the purpose. The said power is left to the responsible discretion of the respondents subject to Articles 14, 19 and 21 of the Constitution of India. The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom is the administrative action is the property of the executive and judicial circumspection keeps the Court lock-jawed save whether power has been polluted by oblique ends or is otherwise void on well established grounds.
17. The project is for the development of infrastructure in the country and development is being carried out by the respondents in the larger interest of public.
18. It is in this background, as settled by the Hon'ble Apex Court in the afore said judgments, the
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WP No. 100906 of 2022 Courts are all not at all equipped to decide upon the viability and feasibility of particular project and whether the particular alignment would subserve the larger public interest. In short, the scope of judicial review in such cases is absolutely limited, unless the project is found to be ex gratia contrary to the mandate of law or tainted due to malafideness in the present case. The petitioners could not demonstrate that it is contrary to the mandate of law and there is violation of mandate of Railway Acts.
19. It is settled law that public interest is a paramount as against a private interest. The petitioners effected numbers which may be absolutely negligible. The people at large cannot be made to suffer, and if the project is not completed in the manner in which the experts in the filed designs to proceed. The projects are for the people at large and not to be implemented to suit the convenience of any individual or group of people.
20. In the present case, the respondents are laying new railway line from Belagavi to Dharwad i.e., 'ABCD' as
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WP No. 100906 of 2022 shown in the sketch ma, it is for the railway authorities to decide to which place is more convenient and if it is unavoidable for the concerned authorities to change the alignment of route line, the decision taken in this regard cannot be said to be arbitrary decision, in particular when no malafides are alleged.
21. In any case the court cannot decide as to which place is more convenient and whether the railway line could be realigned so as to save the properties of the litigant before the Court. Thus, on all these grounds, the writ petition deserves to be rejected.
22. In view of the above discussion, I proceed to pass the following:
ORDER The petition is hereby dismissed.
SD/-
JUDGE EM