Allahabad High Court
Arun Kumar Tiwari S/O Chandrika Prasad ... vs State Of U.P. Thru Prin. Secy. Housing & ... on 25 August, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgment reserved on 25.05.2017 Judgment delivered on 25.08.2017 Court No. - 3 Case :- MISC. BENCH No. - 349 of 2009 Petitioner :- Arun Kumar Tiwari S/O Chandrika Prasad Tiwari Respondent :- State Of U.P. Through Principal Secretary Housing & Urban & Others Counsel for Petitioner :- B.K. Singh Counsel for Respondent :- C.S.C.,Namit Sharma Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. Heard Sri B.K. Singh, learned counsel for petitioner and learned Standing Counsel for respondents.
2. This writ petition under Article 226 of Constitution has been filed as Public Interest Litigation. Petitioner is a Corporator of Nagar Nigam, Lucknow representing Gomti Nagar area. The grievance of petitioner is that authorities concerned involved in Public Utility Services are digging up roads with the permission of Lucknow Nagar Nigam who also collect road cutting charges from such persons but repair or resurfacing of roads is not carried out for long or many times not at all causing tremendous inconvenience to vehicular traffic as well as pedestrians and many times it results in serious mishaps.
3. It is said that no person has any authority or right to cut or damage roads without permission of Municipal Commissioner by virtue of Sections 293, 295, 300 of Uttar Pradesh Nagam Nigam Adhiniyam, 1959 (hereinafter referred to as "U.P. Act 1959"). There are no prescribed rates for road cutting of Nagar Nigam, Lucknow but rates prevailing in U.P.Public Works Department (hereinafter referred to as"UPPWD") are made applicable and adopted by Nagar Nigam, Lucknow relating to road cutting which are as under:-
Serial No. Nature of road New rates (per metre) w.e.f. 1.4.2008 Old rates (per metre) prior to 1.4.2008
1.
Rubber road cutting 2,247 1,525
2. Premixing 1,428 1,040
3. Interlocking 1,446 915
4. C.C. Road 1,035 735
5. BOE 950 950
6. Kachcha 570 570
4. It is said that every year crores of rupees are received by Nagar Nigam, Lucknow under the head of "road cutting charges" but requisite repair or resurfacing is not carried out. In effect entire amount collected by Nagar Nigam, Lucknow is not used for the purpose, the same is meant, but diverted elsewhere. In para 8, petitioner has given a chart showing amount of road cutting received by Nagar Nigam in different financial years commencing from 2001-02 to 2007-08 as under:-
Serial No. Financial Year Amount in rupees (in lacs)
1.
2001-02 202.10
2. 2002-03 211.20
3. 2003-04 212.42
4. 2004-05 129.75
5. 2005-06 225.08
6. 2006-07 145.75
7. 2007-08 50.00 till January
5. He has also pleaded that a large number of contractors of different private companies, after paying road cutting charges for a smaller part of roads i.e. 200-500 metres, actually cut roads much larger to the extent i.e. 3 - 5 kms. Moreover, these Contractors do not pay full charges in one stroke. Instead, make payment in part and in so many cases petitioner has found that on the basis of forged and fabricated papers large number of roads have been damaged by such Contractors.
6. Petitioner also sent letters dated 01.01.2008 and 07.01.2008 for realization of road cutting charges from Private Firms but no action was taken by concerned authorities despite representation made even to Principal Secretary, Nagar Vikas also. Petitioner also sent letter dated 25.02.2008 to Commissioner, Lucknow Division, Lucknow requesting to get an inquiry conducted against those persons who have damaged roads without making payment of "road cutting charges"and officers who have permitted such illegality to perpetuate. Mayor, Nagar Nigam Lucknow vide letter dated 01.07.2008 informed Commissioner, Lucknow Division, Lucknow that under the instructions of government an enquiry is already being conducted against Airtel Company having indulged in road cutting without permission of Nagar Nigam and without deposit of requisite charges and appropriate action will be taken as per enquiry report. However, despite orders of Principal Secretary, no such enquiry has been concluded and matter virtually stood closed by authorities of Nagar Nigam, Lucknow.
7. Petitioner also came to know that under influence of some powerful persons, authorities of Nagar Nigam allowed road cutting to private parties without deposit of any "road cutting charges". He referred to one such letter issued by Nagar Abhiyanta, Zone-1, Nagar Nigam, Lucknow to Rajesh Jolley of Jolley Cable T.V. Networks, Lucknow permitting laying of optical cables by drilling system at B.N. Road, Kailash Chandra Tiwari Marg, Joppling road subject to following conditions;
^^1& dsfcy Mkyrs le; ;krk;kr ds lqxe lapkyu gsrq vko';d okgu ikl djus vkfn dh O;oLFkk djasxasA 2& vUMjxzkmUM dsfcy Mkyrs le; bl ckr dk /;ku j[kk tk; fd vU; foHkkxksa }kjk dsfcy@ikbiykbu@lhojykbu tks iM+s gks {kfrxzLr u gksus ik;saA dk;Z izkjEHk djus ls iwoZ lEcfU/kr foHkkx ls lEidZ dj ys ftlls og vko';drkuqlkj vf/kdkjh@deZPkkjh ds mifLFkr jgus gsrq funsZf'kr dj ldsaA ;fn dksbZ {kfr gksrh gS rks mls Bhd djus dh ftEesnkjh vkidh gksxhA 3& dsfcy Mkyrs le; ;fn dksbZ lM+d {kfrxzLr gksrh gS rks mls Bhd djus dh ftEesnkjh vkidh gksxhA** "1- Shall make arrangements for passing the necessary vehicles etc at the time of laying down the cable for smooth flow of the traffic.
2- Shall take care at the time of laying down the underground cable that the cable/ pipeline/ sewerline already laid down by other departments does not get damaged. Before commencing the work, contact the concerned department so that they can direct the officer/official to remain present as per requirement. If any damage is caused, it shall be your responsibility to repair it.
3- If any road gets damaged at the time of laying down the cable, then it shall be your responsibility to repair it."
(English translation by Court)
8. It is pointed out that under the Statute, permission could have been granted by Municipal Commissioner but here order was passed by Nagar Abhiyanta. The "road cutting charges" payable by Jolley T.V. Cable Network would have to the extent of Rs. 1,55,25,000/- but Executive Engineer of Lucknow Nagar Nigam granted permission free of cost. Petitioner made complaint to Mayor by letter dated 31.10.2008 who directed Municipal Commissioner to conduct enquiry in the matter and submit report for realization of compensation from various companies. An information was given by Public Information Officer to petitioner with regard to "road cutting charges" administered by various companies and individuals. Copy of the said detail has been filed as annexure 8 to the writ petition. This matter was examined in the general meeting of house held on 31.03.2008 and at Item no. 22 this aspect was considered and discussed. The Minutes of said meeting have been filed as annexure 9 to the writ petition. Municipal Commissioner then submitted a proposal for enquiry in the matter and also an enquiry through Economic Offences Wing observing that it is a kind of scam and very serious in nature. When matter was highlighted in media through electronic and print, Inspector General of Police, Lucknow Zone (hereinafter referred to as "IGP (Lko Zone)") sought information from various zones of Lucknow City vide letter dated 01.11.2008, Nagar Abhiyanta Zone-IV informed IGP (Lko Zone) that till 01.11.2008 fifteen First Information Reports were lodged by Municipal Authorities of Zone IV under Sections 431, 352 I.P.C. at Police Station, Gomti Nagar and Gazipur. Every day 5-10 kms. roads are being damaged by Companies, Private Contractors and Individuals but neither "road cutting charges" are deposited nor Nagar Nigam take steps for immediate repair/resurfacing of road so that public may be safe from huge inconveniences.
9. The alleged intra departmental enquiry initially was supervised by Commissioner, Lucknow Division who thereafter transferred it to District Magistrate, Lucknow and now Additional District Magistrate, Trans Gomti has been authorized in the said enquiry. The parties are shifting their burden from one to another and no serious effective step has been taken in this regard.
10. In this writ petition at the admission stage, this Court, on 14.12.2010, passed following order:-
"Heard learned counsel for the parties.
The main grievance of the writ petitioner is that the persons involved in the public utility services are digging up the roads with the permission of respondent no.5, but respondent no.5, in spite of collecting charges, do not carry out the repairing or re-surfacing of the roads, thereby causing tremendous inconvenience to the vehicle traffic as also the pedestrians.
Considering the above, respondent no.5 is directed to file an affidavit showing:-
1. The time frame within which they will carry out the repairing or resurfacing of the roads and footpaths, for which they have give permission to the persons providing public utility services to dig out.
2. Insofar as the charges for such public utility services are concerned, it is for respondent no.5 to decide and this Court is not concerned with the same.
3. A broad time frame in respect of repairing or resurfacing of all such roads within their jurisdiction be placed before this Court.
4. The Principal Secretary, Housing and Urban Planning, State of U.P. also to file an affidavit pointing out any direction, that he may have issued in such matters, not within the jurisdiction of respondent no.5, but all other jurisdictions where such Local Bodies exist and roads as well as footpaths have been dug up for public utilities.
Counter affidavit be filed by the respondents, at any rate, on or before 18.01.2011.
Place the matter on board on 18.01.2011."
11. A short counter affidavit was filed by respondent 5, sworn by B.N. Mishra, the then Chief Engineer, Nagar Nigam, Lucknow. He objected of entertaining this writ petition as Public Interest Litigation stating in para 4 of affidavit that petitioner himself is a Corporator in Nagar Nigam, Lucknow and has raised issue of "road cutting" from time to time and therefore, it cannot be treated to be a Public Interest Litigation. On merits it is said that "road cutting charges" is a compensation of Damages and not a Revenue, hence there is no question of revenue loss to government.
12. Thereafter a detailed counter affidavit was also filed stating that question of directing enquiry through Economic Offences Wing or any other authorities is under consideration at the appropriate stage. Road cutting mainly is done by various Telecom Companies throughout the city of Lucknow for the purpose of laying down cables for providing telephone connections. It ought to be done as per prescribed norms and procedure laid down by Nagar Nigam, Lucknow. The procedure for road cutting adopted by Nagar Nigam, Lucknow has been explained in para 8 of counter affidavit and it reads as under:-
"That the contents of para 2 of the writ petition are false, misleading hence vehemently denied. The petitioner should be put to strict proof regarding the averments made by him in the answering para. Further the deponent submits that the road cutting are done by various telecom companies through out the city of Lucknow for the purpose of laying down the cables for providing telephone connections ought to be done as per the prescribed norms and procedure laid down by the Nagar Nigam Lucknow.
In continuation of above it is pertinent to mention here that the said road cutting which is being carried out in different wards and zones of city of Lucknow is being done in the following manner.
A. Firstly the company seeks permission through an application addressed to the Municipal Commissioner along with a layout plan whereby the applicant company undertakes road cutting work for laying down the said cable.
B. Accordingly the department after verifying the facts provides details of restoring charges of the said road cutting which is done by the respective telecom companies and accordingly the amount in question is deposited by the respective company and then permission is granted to the respective company for under taking the work in question and after completion of road cutting work the department carry out the work of repairing of roads which is done in the following manner.
PROCEDURE ADOPTED FOR RESTORATION/REPAIRING UNDER ROAD CUTTING MATTERS:
a. Estimate of restoration of road after cutting-3 days.
b. Inspection of site where the road has to be restored and checking of estimate- 3 days.
c. Acceptance of Estimate- 6 days d. Tender process- 15 days e. Tender approval committee- 16 days f. Work order to be placed- 3 days g. Completion of work- 90 days Total number of days- 139 days Hence from the above averments it is clear that the entire process takes approximately 139 days meaning thereby that the entire process takes 4 to 5 months and the answering opposite party shall make every possible endeavour to complete the work within this time schedule.
Further it is pertinent to mention over here that the road cutting work and restoration of the same is done as per Sections 301, 302 & 303 of U.P. Municipal Corporation Adhiniyam, 1959 the relevant provisions of which are reproduced as under:-
Provisions concerning execution of works in or near to streets
301. Execution of works in or near to any streets:- Whenever there is any work in execution in or near to any street on behalf of the Corporation the Municipal Commissioner shall take such steps in regard to safety and convenience as he may be required to take under the rules, Whilst any such work as aforesaid or any work which may lawfully be executed in street is in progress the Municipal Commissioner may in the manner laid down in the rules close the street wholly or partly for traffic or for traffic of any such description as he may deem fit.
302. Streets not to be opened or broken up and building materials not to be deposited thereon without permission-(1) No person other than the Municipal Commissioner or a Corporation officer or servant as such shall, without the written permission of the Municipal Commissioner or without other lawful authority-
(a) open, break up displace, take up or make any alteration, in or cause any injury to, the soil or pavement, or any wall, fence, post chain or other material or thing forming part of any street or in any open spaced vested in the Corporation;
(b) deposit any building materials in any street or open space vested in the Corporation.
(c) set up in any street or open space vested in the Corporation any scaffold or any temporary erection for the purpose of any work whatever, or any posts, bars, rails, boards or other things by way of enclosure, for the purpose of making mortar or depositig bricks, lime, rubbish or other materials.
(2) Any permission granted under Clause (b) or (c) of Sub-section (1) shall be terminable at the discretion of the Municipal Commissioner, on his giving not less than twenty-four hours written notice of the termination thereof to the person to whom such permission was granted.
(3) The Municipal Commissioner may, without notice-
(a) Cause the soil or pavement or any wall, fence, post, bar or other material or thing forming part of the street to be restored to the condition it was in before any opening, breaking up, displacement oralteration or injury made or done without the permission of the Municipal Commissioner.
(b) Except in cases in which permission has been applied for under Clause (b) of Sub-section (1) for the deposit of building materials in any street any street and no reply has been sent ot the applicant within seven days from the date of the application, cause to be removed any building materials, or any scaffold, or any temporary erectionl or any posts bars, rails, boards or other things by way enclosure, which have been deposited or set up in any street without the permission or authority specified in Sub-section (1), or which, having been deposited or set up with such permission or authority, have not been removed within the period specified in the notice issued under Sub-section (2).
303. Precautions for public safety to be taken by person whom permission is granted under Section 302-(1) Every person to whom any permission is granted under Section 302 shall, at his own expenses, cause the place where the soil or pavement has been opened or broken up or where he has deposited building materials, or set up any scaffold, erection or other thing, to be properly fenced and guarded, and, in all cases in which the same is necessary to prevent accidents, shall cause such place to be well lighted during the night.
(2) Every person to whom permission is granted under Section 302 to open or break up the soil or pavement of any street, or who, under other lawful authority, opens or breaks up the soil or pavement of any street shall with all convenient speed complete the work for which the same shall be opened or broken up, and fill in the ground and reinstate and make good the street or pavement so opened or broken up without delay to the satisfaction of the Municipal Commissioner:
(3) The Municipal Commissioner may, by written notice, require any person to whom permission is granted under Section 302 to open or break up the soil or pavement of any street, or who under any other lawful authority,k opens or breaks up the soil or pavement of any street for the purpose of executing any work, to make provisions to his satisfaction for the passage or diversion of traffice for securing access to the premises approached from such street and for any drainage, water supply or means of lighting which may be interrupted by reason of the execution of the said work.
As per specification for Road and Bridge works published by Indian Road Congress the relevant extract of same is mentioned Under Section 510.3.6 which is reproduced herein for convenience of this Hon'ble Court 510.3.6:- Application of second coat of surface dressing where the surface dressing in two coats is satisfied, the second coat should not be applied until the first coat has been open to traffic for two or three weeks. The surface on which the second coat is allowed must be clean and free of dust. Construction operation for the second coat shall be the same as described in clause 510.3.3 to 510.3.5." (emphasis added)
13. The amount deposited under the head of road cutting is not a Revenue but Damages or compensation.
14. With regard to permission granted to M/s Jolley Cable T.V. Networks, Lucknow, it is said that same was in accordance with law. Reply is contained in para 20 but we find that nothing has been said with regard to allegations that said permission was granted without requiring aforesaid Company for payment of road cutting charges. Petitioner has specifically averred that it was allowed free of cost by Engineer concerned but this averment has not been denied at all, specifically.
15. The contents of para 23 of counter affidavit also show flagrant violation and non observance of requirements of statutory permission etc. by various bodies indulged in road cutting. Para 23 of counter affidavit is quoted as under:-
"That the contents of para 22 of writ petition are false misleading hence vehemently denied. Since the contents of this paragraph of writ petition are mere reiteration of earlier paras of the same which are suitably being denied hence for the reason already stated in the preceding paras of this counter affidavit are reiterated to be true."
16. General House constituted a Committee to make preliminary enquiry and that matter can be directed to be investigated by Economic Offences Wing and it is pending consideration at appropriate stage. It is also said that Nagar Nigam, Lucknow has recovered damages in respect to road cutting from Telecom Companies when it has come to the knowledge of officers of Nagar Nigam, Lucknow. Further wherever the occasion has arisen even First Information Reports have already been lodged and that the allegations of digging road in night in collusion with Police, without permission of Municipal Commissioner relate to Police Department and not concerned with Nagar Nigam, Lucknow.
17. We find that in respect to specific directions contained in Clause 1, 3 and 4 of the order dated 14.12.2010, no affidavit has been filed either by respondent 5 or respondent 1 and they have chosen to maintain conspicuous silence in this regard. It is in this backdrop, we have to decide this writ petition.
18. Under the statutory provisions i.e. Section 301 to 304 referred to by respondents, the entire controlling power has been conferred upon Municipal Commissioner. Even Nagar Nigam has found that the matter with regard to enquiry through Economic Offences Wing or any other authority was under consideration at appropriate stage showing that it had prima facie information of large scale violation and contravention of statutory provisions at different levels which require appropriate enquiry but no concrete steps have been taken in the matter till date. Even intra departmental enquiry which was initially supervised by Commissioner, Lucknow Division, Lucknow now been placed in the supervision of Additional District Magistrate, Trans Gomti as has been brought to notice of Court. Even respondent 1, has found it convenient to avoid to file reply to this Court despite specific order passed by Court almost six and half years back i.e. 14.12.2010. It is in these facts and circumstances, we have no option but to pass following order in this writ petition.
19. The State of U.P. through Chief Secretary, is directed to constitute a Committee which must have an officer not below the rank of Special Secretary in the Department of Housing and Urban Planning and Additional Legal Remembrancer in the Department of Law and Justice and an officer not below the rank of Deputy Inspector General of Police to make enquiry into various road cuttings in area of Lucknow under Nagar Nigam, Lucknow since 01.01.2009 till date. The receipt of compensation in lieu of damage caused to the roads, streets in such cuttings, the amount of road cuttings charges/damages deposited by persons or the companies etc. undertaking road cutting, whether such road cutting was after obtaining permission from Municipal Commissioner or any person authorized by him as contemplated under the Statute and whether after such road cutting the damages to roads, streets etc. have been repaired by concerned persons or Nagar Nigam as the case may be and the time such repair has been completed shall be examined by above Committee. It shall also enquire into the quality of such repair and submit report by 26.02.2018 to the respondent 1 who shall take appropriate steps as per the report submitted by said Committee.
20. A copy of such report and action taken by respondent 1 within one month after receipt of report shall be placed for perusal of Court also.
21. The State Government through Department of Home shall find out the progress made in various First Information Report lodged by Nagar Abhiyanta, Zone- IV as referred in the counter affidavit and also if any subsequent reports have been lodged and progress therein. If there is no substantial progress it shall take appropriate steps for the said purpose directing concerned officials to take appropriate steps in accordance with law. The current status of aforesaid matters shall also be placed before this Court along with report and action taken as already directed in the earlier directions.
22. Henceforth, respondents are directed to strictly seek compliance and observances of procedure prescribed under Statute and for any violation thereof take immediate suitable criminal, departmental, and such other action as required in law, without any further delay.
23. With the aforesaid directions writ petition is disposed of. It shall however be listed only for the purpose of perusal of report as already directed which shall be submitted by respondents by 26.03.2018.
Order Date :- 25.08.2017 Pravin