Rajasthan High Court - Jaipur
Mool Chand Kumawat S/O Late Nanulal vs National Highway Authority Of India on 16 July, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil (PIL) Writ Petition No.19126/2017
1. Mool Chand Kumawat S/o late Nanulal, aged about 70 years,
by caste Kumawat
2. Ram Narayan Kumawat S/o Shri Gheesa Lal, aged about 70
Years, by caste Kumawat,
(Both are resident of Neem Nagar, Ward No. 10, Reengus,
District Sikar (Rajasthan)
----Petitioner
Versus
1. National Highway Authority of India, Ministry of Road &
Transport Corporation, Corporate Office, G-5&6, Sectior-
10, Dwarka, New Delhi - 1120075 through Secretary
Project Director, National Highway Authority Of India,
(Ministry Of Road Transport And Highways), Project
Implementation Unit, Plot No. 187, 188, Vinayak Vihar,
Near Piprali Circle, Jhunjhunu Bypass, Sikar (Rajasthan)
332001
2. Chief Managing Director (Technical), Regional Office,
National Highway Authority Of India, F-120, Janpath,
Shyam Nagar, Jaipur
3. Project Director, National Highway Authority Of India,
(Ministry Of Road Transport And Highways), Project
Implementation Unit, Plot No. 187, 188, Vinayak Vihar,
Near Piprali Circle, Jhunjhunu Bypass, Sikar (Rajasthan)
332001
4. Project Director, National Highway Authority Of India,
(N.H.-11) Near Old Toll Both, Trikaria House, Cricle
Reengus, District Sikar 332404 (Rajasthan)
5. State Of Rajasthan Through Principal Secretary, Public
Works Department, Secretariat, Jaipur.
6. Dedicated Freight Corridor Corporation Of India Ltd,
Through Its Dy. Chief Project Manager/ Engg., C-16,
Khushi Vihar, Patrakar Colony, Mansarovar, Jaipur 302020
(Rajasthan)
----Respondents
For Petitioner(s) : Mr. Anoop Dhand
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For Respondent(s) : Mr. Vikas Soni with
Mr. Kartik Gupta for respondent
N.H.A.I. Mr. P.C. Sharma for respondent Railway HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment //Reportable// Per Hon'ble Mr. Justice Mohammad Rafiq:
16/07/2019 This writ petition by way of Public Interest Litigation has been preferred by two petitioners, namely, Mool Chand Kumawat and Ram Narayan Kumawat, both residents of Neem Nagar, Ward No.10, Reengus, District Sikar, inter-alia with prayer that the order dated 24.04.2017 passed by the Project Director, National Highways Authority of India (Annexure-3) be quashed and set aisde and the respondents be directed to provide two underpasses no.1 and 5 (19 meter in the western side and 18 meter in the eastern side) for use of general public under the railway over- bridge at National Highway No.11 at Reengus Municipal Area, Sikar.
Mr. Anoop Dhand, learned counsel for petitioners, submitted that the petitioners have approached this Court claiming the right of way through the railway over-bridge being constructed by the National Highways Authority of India (for short, 'the NHAI') on National Highway No.11 passing through the municipal limit Reengus. The NHAI is constructing four lane road at National Highway No.11. The construction is going in its full swing. While constructing an over bridge of one and a half kilometer (300+364 (Downloaded on 01/09/2019 at 07:40:17 PM) (3 of 12) [CW-19126/2017] meter), the respondents are not constructing even a single underpass at the railway over-bridge at Neem Nagar (Reengus), District Sikar, whereas construction of such underpass is absolutely necessary to avoid the accidents and mishaps. The total population of village Neem Nagar (Reengus) and surrounding areas is about 10,000. In the northern side of the proposed railway over-bridge there are many educational institutions where thousands of students are studying. 60% students have to cross the highway from the northern side to southern side and 40% students have to cross the highway from southern side to northern side. Construction of underpass at this National Highway is necessary as there are many roads crossing Neem Nagar (Reengus) to other villages and 'dhanies', namely, Jetusar, Dhanis of Bisawali Kali Dhariyaoki, Budiyoki, Cambawali, Bhopalpura, Dhabiyaki. Moreover, other important institutions like the State Bank of India, Punjab National Bank, Post Office, Railway Station, Gramin Bank, Cooperative Bank, Hospitals are situated in the southern side of the Highway and large number of people are residing in the northern side of this Highway. One underpass is not at all sufficient for reaching all these destinations.
Mr. Anoop Dhand, learned counsel, submitted that many senior citizens and residents of village submitted a representation on 22.02.2013 to the respondents requesting them to construct at least one underpass. The representatives of the educational institutions also submitted similar representation to the Project Director, NHAI. The Sarpanch of Gram Panchayat Jetusar and other public representatives also submitted representation to the authorities and details of their Gram Panchayat and their difficulties were mentioned therein. All of them requested the (Downloaded on 01/09/2019 at 07:40:17 PM) (4 of 12) [CW-19126/2017] authorities to construct at least one more underpass, but that too of no avail. It is contended that near Neem Nagar (Reengus), there is another village known as Goriya and the surrounding area is hardly 10% of the total population of Reengus (Neem Nagar), but still NHAI is constructing two underpasses there. There is no logic for constructing only one underpass at Ranoli and providing two underpasses at village Goriya. Action of the respondents is discriminatory being violative of Article 14 of the Constitution of India.
It is contended that the petitioners served a legal notice for demand of justice on the respondents on 23.02.2013. When no heed was paid, they filed D.B. Writ Petition (PIL) No.3754/2013. The respondent NHAI contested the writ petition by filing reply thereto and the petitioner also submitted rejoinder, wherein they stated that proposed small underpass at 50+603, is adequate for the villagers and the traffic that would pass through the same. But they expressed the apprehension that in future the said underpass may be used by the railway authorities. The respondents in that writ petition clarified that the railway over-bridge is situated at Km.296+665 (Ch.50+563) and Neem Nagar area is situated on the southern side. It was also stated that three openings are constructed at Ch.50+033, 50+405, 50+524 in the eastern direction and one opening at Ch.50+603 in the western direction for the general public near the Railway Over-bridge Areas, as against one underpass claimed by the petitioner. Taking note of the aforesaid stand of the NHAI, this Court disposed of the writ petition with liberty to the petitioner to submit representation(s) at appropriate point of time before the concerned respondents ventilating their grievances vis-a-vis the project, if so advised and (Downloaded on 01/09/2019 at 07:40:17 PM) (5 of 12) [CW-19126/2017] observed that if such representations are filed, the same would be considered and disposed of in accordance with law.
Mr. Anoop Dhand, learned counsel, submitted that apprehension expressed by the petitioners in their rejoinder that in future the respondents might change their stand has come true, which is evident from the letter dated 29.04.2013 sent to one Shri Basant Kumar Kumawat by the Project Director of the NHAI in response to his querry under Right to Information Act, 1995. Therein, it has been informed that there is no proposal for having an opening under the railway over-bridge between Neem Nagar and Buwarioyn/Budhiyo-ki-Dhani. The respondents have taken a U-turn vide letter dated 24.04.2017 that there is no provision to provide any way to the residents of Neem Nagar/Budanis-ki- Dhani. It is contended that the respondents have played a fraud with the public at large and also misled this Court by not maintaining their stand, which they took in the earlier writ petition. It is submitted that under the Railway Over-bridge at Reengus, District Sikar, the respondents have constructed five underpasses under the bridge, first (18 meter) and the firth (18 meter) underpasses have been constructed for public use and second, third and fourth underpasses have been constructed for the use of the Railway. For the purpose of the present railway track span of 20 meter and 32 meter is under construction and also a span of 20 meter is being constructed for the railway track pertaining to dedicated freight corridor. It is incorrect on the part of the respondents and the Dedicated Freights Corridor Corporation of India Limited that it was not intimated to them earlier, otherwise the underpasses could have been constructed in time. These facts were brought to the notice of the respondents (Downloaded on 01/09/2019 at 07:40:17 PM) (6 of 12) [CW-19126/2017] and all the concerned authorities in the year 2012-2013 itself by the petitioners and villagers. In fact, the general public on other side of the railway over-bridge had very much raised the demand of having openings on both the sides of the railway track and only when their demand was not met then they approached this Court by filing writ petition praying that their grievance should be remedied requiring the NHAI to provide such openings.
Mr. Vikas Soni, learned counsel for respondent NHAI, submitted that the NHAI was entrusted with the work of four lane of Jaipur-Reengus Section from KM 246.300 to KM 298.075 on Public Private Partnership (Toll) basis (PPP basis) under the project with concessionaire including the construction of two lane railway over-bridge (ROB) with 5 sections (3x20m, 2x18), 2 additional spans on Jaipur side one additional span on Sikar side. However, the existing two lane ROB was retained and additional two lane was constructed by the concessionaire. The petitioners have filed this writ petition seeking two under-bridges no.1 and 5, but they are constructed, within the right of way (ROW) of DFCCIL/Railways and is within their domain. When the petitioner submitted representation pursuant to the order dated 06.09.2013 passed by the Division Bench in PIL Petition No.3754/2013, the same was forwarded to the DFCCIL vide letter dated 22.08.2017 with request to submit a detailed clarification along with its comments. The Deputy Chief Project Manager of the DFCCIL sent a letter dated 14.09.2017 to the General Manager Technical, NHAI stating that the issue involved was highly technical in nature as the DFC operations have been designed for 100 KM per hour speed with 25kV AC traction system. The underpass no.1 and 5, of which the petitioners are seeking opening for VUP is just abutting (Downloaded on 01/09/2019 at 07:40:17 PM) (7 of 12) [CW-19126/2017] the railway track and the construction of retaining wall of DFC span is under advance stage of completion. Therefore, the major safety issues are involved and therefore such permission cannot be granted.
It is contended that for the purpose of future expansions/emergencies/maintenance a void span is generally constructed by DFCCIL/Railway. It is submitted that under the present project the concessionaire constructed two lane ROB with five sections, two additional span on Jaipur side and one additional span on Sikar side. DFCCIL/Railway applied for permission for laying 2 tracks of DFC Corridor and also raising height (vertical clearance of existing two spans). The DFCCIL/Railways did not immediately agree for additional span and matching height with two lane constructed by concessionaire. However, keeping in view the importance and time bound execution of DFC Corridor the permission was accorded. Now the DFCCIL/Railways having laid two tracks which cover width of only one span and other span they are closing, because they do not allow the general public vehicle movement in its ROW. The ROB has been constructed as per General Arrangement Drawing duly approved by the Railways and two VUP's at KM 50.040 and KM 50.405 have already been provided for public use within the stretch of 500 meters which is sufficient for the movement of public on either side across the ROB.
Learned counsel for the respondent DFCCIL has also taken a similar stand and contended that the DFCCIL is an executing company under the Ministry of Railways (Railway Board) incorporated for the purpose for laying down the DFC track through Western Dedicated Freight Corridor and Eastern Freight (Downloaded on 01/09/2019 at 07:40:17 PM) (8 of 12) [CW-19126/2017] Corridor. The proposal for reduction of viaduct or span at Reengus Railway Over-bridge was forwarded to the office of DFCCIL and the issue was verified at the site also and it was noticed that the old ROB which was modified by the respondents did not have any provision of service road. Another adjacent ROB constructed by the NHAI in 2013 also did not have provision of service road. The reasons for providing five span in the new ROB were owing to Railway policy with regard to right of way. The Railway always insisted on providing bridge of proper length to accommodate Railway's right of way, so as to avoid later technical complications when the Railways track needed expansion and modifications and also to settle the maintenance issues. Two vehicular underpasses have already been provided at KM 50/050 and 50/400. As the site survey, there did not exist any public road within the Railway's right of way. It is not the case of the petitioners that earlier there was any public road and now the DFCCIL has closed it. The land of the Railways was used in construction of DFC track but after expansion work for the DFC track, no space is available for providing any public road. Since there existed no public road, there is no question of its being closed.
We have given our anxious consideration to rival submissions and perused the material on record.
This Court in its judgment dated 06.09.2013 passed in the earlier D.B. Writ Petition (PIL) No.3754/2013 filed by the petitioners merely required them to submit representations before the concerned respondents ventilating their grievances vis-a-vis the project, and if so advised and observed that if such representations are filed, the same would be considered and disposed of in accordance with law. No positive direction was given (Downloaded on 01/09/2019 at 07:40:17 PM) (9 of 12) [CW-19126/2017] to provide the underpass as is being demanded by the petitioners. The order merely made reference to the letter dated 29.04.2013 of the NHAI with regard to openings mentioned therein. It was observed that "the projects underway have been conceptualized understandably, to meet the locational requirements and certainly the public interest involved, this Court is ill-equipped as well to delve into and decisively analyze the highly technical aspects involved, addressed by the experts in-charge of the execution thereof." No doubt, this Court had taken note of the admission of the petitioners about the existence of the openings, referred to by the NHAI in their pleadings. True it is that the respondents then aired an apprehension that the one on the western side near the railway over-bridge may in future be used by the railways and closed to the public in general but the Court observed that apparently, at present there is no basis of this apprehension. This however cannot be construed to be a binding direction to the respondents particularly when the DFCCIL was not a party respondent before this Court in that writ petition. The DFCCIL, which was ordered to be impleaded as party in the present writ petition, has in their counter affidavit taken a categorical stand before this Court that two vehicular underpasses have already been provided at KM 50.040 and KM 50.405, the construction of which was planned on additional Indian Railways and DFC right of way. The site survey made it clear that there did not exist any public road within the Railway right of way. There was no proof of the fact that there was any public road earlier and now the DFCCIL was closing it down. The land of the Indian Railways was utilized in the construction of the DFC track but after expansion work of the track no space was now available for providing any public (Downloaded on 01/09/2019 at 07:40:17 PM) (10 of 12) [CW-19126/2017] road. The span at KM 50.524 where the petitioners are demanding a public access is within the ROW of the DFCCIL/Railways and the same is being closed by the DFCCIL due to safety issues.
No doubt, this may cause some inconvenience to the residents of either side of the Railway over-bridge by requiring them to cover few more distance but considering the safety issues raised by the DFCCIL, but when the respondents have contended that the existing VUP is located at CH 50/400, this Court does not deem it appropriate to require the NHAI and Railways to provide an additional opening in the vicinity of running railway tracks or a VUP near the DFC span. The respondents have submitted that the DFC track has been designed for 100 KMPH speed with 25 KV AC traction system, which would obviously require them to maintain a safe distance from public road.
Even this Court in its order dated 06.09.2013 passed in earlier D.B. PIL Petition No.3754/2013 - Mool Chand Kumawat & Another Vs. National Highway Authority of India & Others, observed as under:-
".... Apart from the fact that the projects underway have been conceptualized understandably, to meet the locational requirements and certainly the public interest involved, this Court is ill-equipped as well to delve into and decisively analyze the highly technical aspects involved, addressed by the experts in-charge of the execution thereof."
The ROB in question was operated in Ateli-Phulera section of DFCCIL project, which is an important Railway project of the country funded by Japan International Cooperation Agency. The implementation of the project is being monitored at high level by (Downloaded on 01/09/2019 at 07:40:17 PM) (11 of 12) [CW-19126/2017] the PMO, so as to ensure its timely completion. Moreover, the stand of the respondent Railways before this Court has been that the Railway lines already subjected to expansion may in future also as per the need of the Railways be required to be expanded. The work of ROB has been completed except finishing of some lane stretch. The DFCCIL for safety reasons does not allow any public vehicle in its right of way and therefore thought it appropriate to close the additional span, which cannot be said to be unjustified particularly when two VUP's at KM 50.040 and KM 50.405 have already been provided for public use within the stretch of 500 meters from the existing ROB, which is sufficient for the movement of public on either side across the ROB the span at KM 50.524 where the petitioners are demanding a public access is within the ROW of the DFCCIL/Railways, which according to them, is being closed by the DFCCIL due to safety issues.
Undeniably, construction of dedicated freight corridor in itself is being made in public interest. When one public interest is pitted against another, it will be a case of competing public interest. In such a situation, normally it is for the concerned authorities to decide as to which one should take precedence over the other. In any case, construction of western dedicated freight corridor for 1483 kilometers from JNPT (Mumbai) to Dadri (Delhi) via Surat- Vadodara-Ahmedabad-Palanpur-Ajmer-Ringus-Rewari, is a project of national importance. This corridor is being built in larger public interest. The interest of the public residing on either side of the road, who have already been provided another underpass at a distance of about 500 meters, will have to therefore give way to this larger public interest.
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(12 of 12) [CW-19126/2017] In view of the above, there is no merit in this writ petition and the same is accordingly dismissed. This also disposes of any other pending application(s).
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J //Jaiman//22 (Downloaded on 01/09/2019 at 07:40:17 PM) Powered by TCPDF (www.tcpdf.org)