Gujarat High Court
Dashrath Gram Panchayat vs National Highways Authority Of India & ... on 13 January, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/WPPIL/173/2013 CAV JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 173 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ DASHRATH GRAM PANCHAYAT....Applicant(s) Versus NATIONAL HIGHWAYS AUTHORITY OF INDIA & 1....Opponent(s) ================================================================ Appearance:
MR SP MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 MS VACHA DESAI, AGP for the Opponent(s) No. 2 MR MAULIK G NANAVATI, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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C/WPPIL/173/2013 CAV JUDGEMENT
Date : 13/01/2014
CAV JUDGEMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this petition in the nature of a public interest litigation, the Gram Panchayat of village Dashrath, District Vadodara, through its Sarpanch, has prayed for the following reliefs :
"(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the concerned respondent authorities to take suitable action as per the representations of the petitioner dated 16.05.2013 and 3.06.2013 in order to prevent flood on both sides of National Highway No.8 covering from GSFC Company to Ranoli crossing;
(B) During pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondent authorities to act as per the representation of the petitioner dated 3.06.2013;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
The case made out by the petitioner may be summarised Page 2 of 13 C/WPPIL/173/2013 CAV JUDGEMENT as under :
The Gram Panchayat received a representation dated 12 th May 2013 from a school named Mahakorben Paragbhai Patel High School situated in the village, stating that on account of the expansion of the National Highway No.8 there has been a lot of problem of water logging, as a result of which the functioning of the school gets affected. It was informed to the petitioner that no provisions have been made for discharge of the rain water.
The petitioner took cognizance of the representation of the school and accordingly passed a resolution dated 1 st May 2013 to take up the matter with the authorities concerned.
The petitioner thereafter preferred a representation dated 16th May 2013 addressed to the Mamlatdar, Vadodara (Rural), inter alia, bringing it to his notice that the village is experiencing lot of problems due to water logging in the monsoon and the authorities must take care of the problems at the earliest.
In the representation preferred by the petitioner, it was mainly pointed out that the construction of the National Page 3 of 13 C/WPPIL/173/2013 CAV JUDGEMENT Highway is the main reason for the village to get inundated as the height of the National Highway No.8 passing through the village has been raised by 2 feet.
It was also pointed out that during the monsoon the village ponds overflow, as a result of which the water gets into the village thereby paralyzing the normal life of the villagers.
It was also pointed out by the petitioner that the maintenance of the drainage system over a period of time has been very poor and appropriate measures be taken to take care of such problems.
According to the petitioner, the National Highways Authority of India has not provided an adequate drainage system beneath the bridge and no underpass has also been provided over the proposed construction. On both the sides of the road there are no outlets provided for smooth discharge of the rain water.
In such circumstances, the petitioner has prayed for an appropriate directions upon the authorities to resolve the problem of water logging in the village. Page 4 of 13
C/WPPIL/173/2013 CAV JUDGEMENT On behalf of the respondent no.1 - National Highways Authority of India, an affidavit-in-reply has been filed duly sworn by the Manager (Technical) Project Implementation Unit, Ahmedabad, inter alia, stating as under :
"I say that one of the roads identified for development and expansion under the National Highway Development Project (NHDP) of the Government of India is a stretch of National Highway No.8 between the cities of Ahmedabad and Vadodara. The project work involves widening and developing the existing 2/4 lane highway into a 6 lane highway with provision for service roads on either side of the last carriageway.
I say that the design for the road has been prepared by the Technical Consultant, M/s.Intercontinental Consultants and Technocrats Private Limited. The execution of the work by the contractor as per the designs and specifications is monitored by an independent engineer, apart from being supervised by the Authority.
I say that in the road design prepared by experts, after conducting an exhaustive study of various factors including data on collection of water at certain locations, movement of water, accumulation and flow of water, position of water reservoirs, adequate provision has been made for construction of drains in the space between the Page 5 of 13 C/WPPIL/173/2013 CAV JUDGEMENT last of the carriageway and the service road. Similarly, for smooth flow of water across the highways, sufficient number of box culverts has been provided for in the design by the consultant. At the designing stage, provision has been made not only for enlargement of the existing culverts and drains, but also for construction of new drains and culverts. Also, provision has been made for cross drainage structures and longitudinal earthen drains on both sides of the highway within the Right of Way to enable collection of rain water and its discharge to the nearest water outlets.
I say that at some location the work of development and expansion of highway has commenced. At all such places, sufficient care is being taken by the contractor to ensure that there is no water logging caused at the location because of any reason attributable to the construction activity. I say that, in fact, there is no accumulation of water at any place because of the construction work being carried out by the Authority. I further say that no place has there been any stoppage of natural flow of water because of piling or placing of construction material on the side of the road.
I say that in so far as collection of water in the school premises is concerned, the same is not because of any construction activity being undertaken by the Authority. I say that immediately on filing of the present petition, an inspection was carried out at the location. It was found that there is no collection of water on either side of the highway at village Dashrath. Further, no complaint of Page 6 of 13 C/WPPIL/173/2013 CAV JUDGEMENT water logging at any point of time in the present monsoon season has been made by any local resident or the gram panchayat to the Authority. I say that on visual analysis, it appears that water had collected in the school compound because the land level in the school premises is lower than the surrounding area, and water having collected because of rain or flow from higher level had remained stagnant in absence of any outlet, either in the form of gutter or storm water drain inside the compound.
I, therefore, submit that the present petition highlights a stray incident, caused principally by sudden rainfall and lack of infrastructure provided by the local authority. In any case, the water collection was not caused because of any construction activity of expansion of national highway being carried out by the Authority. I, therefore, humbly pray that the Hon'ble Court may be pleased to dispose the present petition and discharge the notice issued on the petition to the respondents without costs."
Mr.Sharvil Majmudar, the learned advocate appearing for the petitioner, submitted that due to construction of the national highway the entire village got inundated and the normal life of the villagers was paralyzed for number of days. The school in the village had to be kept closed as it was virtually impossible for the students to reach up to the school.
Mr.Majmudar further submitted that it is the duty of the Page 7 of 13 C/WPPIL/173/2013 CAV JUDGEMENT authorities concerned to take care of the problem and see to it that the village does not get inundated.
Mr.Majmudar further submitted that the National Highways Authority has caused extensive damage to the drainage system which is very much adjoining to the national highway, giving rise to the problems of sanitation.
In such circumstances referred to above, Mr.Majmudar prays that the authorities concerned should be directed to study the problem and take care of the same so that the villagers may not have to face any more hardships during the monsoon.
Mr.Maulik Nanavati, the learned counsel appearing for the respondent no.1 - National Highway Authority of India, opposed the aforenoted contentions canvassed on behalf of the petitioner and submitted that the problem of water logging has nothing to do with the construction of the highway.
Mr.Nanavati submitted that adequate provision has been made for the cross drainage structures and longitudinal earthen drains on both the sides of the highway within the Page 8 of 13 C/WPPIL/173/2013 CAV JUDGEMENT Right of Way to enable collection of rain water and its discharge to the nearest water outlets.
Mr.Nanavati also submitted that no complaints of water logging at any point of time in the last monsoon season were received from the petitioner or from any of the local resident.
Mr.Nanavati submitted that the school compound was inundated because the level of the land in the school premises is quite lower than the surrounding area, and in absence of any outlet either in the form of a gutter or storm water drain the water got stagnated.
Mr.Nanavati submitted that there is absolutely no basis for the petitioner to blame the National Highway Authority so far as the problem of water logging is concerned.
Having heard the learned counsel for the parties and having gone through the materials on record, the only question that falls for our determination is, whether the construction of national highway passing through the village is the reason for the village to get inundated.
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C/WPPIL/173/2013 CAV JUDGEMENT It appears from the photographs which have been annexed with the petition that the situation in the village was really very bad as practically the entire village was inundated.
So far as finding faults with the construction of highway is concerned, it should be left best to the experts so far as providing of drainage, underpasses, culverts, etc is concerned. This Court is not an expert in the field of engineering and, therefore, we should not express any opinion as regards the construction of national highway is concerned. From the affidavit-in-reply filed on behalf of the respondent no.1, it is made amply clear that the problem of water logging has nothing to do with the construction of the national highway.
However, a close scrutiny of the materials on record reveals that the school premises got inundated because the pond which was in Survey No.566 was filled up and on the same, a petrol pump has been constructed, namely, M.F.Amin Petrol Pump. It appears that during the monsoon the rain water used to get accumulated in the pond, but since the pond came to be filled up, there was no other way for the water to make its course as a result it got accumulated in the school premises.
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C/WPPIL/173/2013 CAV JUDGEMENT How the pond came to be filled up and what was the reason for filling up the pond is not known to us, but it is definitely a matter of concern because even otherwise a water body cannot be filled up for any purpose after the pronouncement of this Court in the case of Shailesh R.Shah v. State of Gujarat, reported in 2002(3) GLR 2295.
Be that as it may, we are of the opinion that the authorities concern should apply their mind and try to ascertain the real cause for the village getting inundated during the monsoon.
We propose to close this public interest litigation with the following directions :
(1) The respondent no.2 Collector, Vadodara, is directed to constitute a committee of experts including one representative of the respondent no.1 National Highways Authority of India and one representative of the Concessionaire (Contractor), and ask the Committee to make a survey of the entire village for the purpose of ascertaining the real cause of water logging in the village during the monsoon.
Such Committee shall be constituted within a period of Page 11 of 13 C/WPPIL/173/2013 CAV JUDGEMENT fifteen days from the date of this judgment and shall undertake the necessary survey and submit its report to the Collector within a period of three months thereafter. (2) The Collector shall study the report, and if any shortcomings or deficiencies are pointed out by the Committee, then such deficiencies should be immediately taken care of before the onset of 2014 monsoon. (3) The Collector shall also inquire as to in what circumstances the pond on Revenue Survey No.566 of village Dashrath was filled up and how come that a petrol pump was constructed on a water body. The report in this regard be also placed before us.
(4) The Collector shall place the report of compliance before this Court in the first week of April 2014. With the above observations and directions, we close this public interest litigation. However, in the facts and circumstances of the case, there shall be no order as to costs.
Let this matter appear on 17th April 2014 for consideration of the report of the Committee.
It is clarified that pendency of this petition will not come in the way of the National Highways Authority of India to Page 12 of 13 C/WPPIL/173/2013 CAV JUDGEMENT proceed ahead with the construction of the highway.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 13 of 13