Gujarat High Court Case Information System
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WPPIL/28/2011 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT
PETITION (PIL) No. 28 of 2011
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR.S.J. MUKHOPADHAYA: Sd/-
HONOURABLE
MR.JUSTICE J.B.PARDIWALA : Sd/-
=======================================================
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 ?
=======================================================
KHALIKPUR
GRAM PANCHAYAT - PETITIONER
Versus
STATE
OF GUJARAT - THROUGH SECRETARY & 4 - RESPONDENT
=======================================================
Appearance :
HL
PATEL ADVOCATES for PETITIONER : 1,
MR PK JANI, GP with MS KRINA
CALLA AGP for RESPONDENT : 1,
NOTICE UNSERVED for RESPONDENT :
2,
MR SIRAJ R GORI for RESPONDENT : 3,
None for RESPONDENT :
4,
NOTICE SERVED BY DS for RESPONDENT :
5,
=======================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 25/08/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.B.PARDIWALA)
This
is a writ petition filed in Public Interest under Article 226 of the
Constitution
of India seeking appropriate writ, order or
direction against the respondent authorities to take appropriate
measures to ensure that there is no water logging and drowning of
Hamlet Anandpura Kampa, Village : Khalikpur.
This
Public Interest Litigation is preferred by the Khalikpur Gram
Panchayat through its Sarpanch. It appears that some work of
widening of Halol-Shamlaji highway was undertaken in the year 2004.
A small bridge has also been constructed on the river Sankri, as a
result of which, village is facing an acute problem of water logging
during monsoon. It appears that the respondents were informed that
because of newly constructed road, water which flows above the road
gets logged due to height of the road, as a result of which, water
is not able to flow across the culvert box and enters hamlet
Anandpura. The petitioner has also drawn attention of the Court that
height of the road is increased by about 6 feet from the ground
level and Sakri river is situated at a distance of 700 feet from the
village. During heavy monsoon, water enters village resulting into
extensive damage to crops, houses etc. Showing instance of the year
2006 when the monsoon was very heavy, compound wall of Primary
School was also damaged and collapsed. It is also brought to our
notice that school building also got damaged.
It
is also brought to our notice that local MLA of the area, who is
Minister in the State Government, was also appraised of this
problem.
Taking
into consideration the nature of the problem and hardships which the
villagers have to face, we passed an order on 08.04.2008, which
reads as under :-
“This
Public Interest Litigation has
been preferred by Khalikpur Gram Panchayat against raising the level
of four-lane Highway and construction of a bridge, on the ground
that such raising will create problem of water-logging and drowning
of entire hamlet of Anandpura. In the present case, prima-facie, we
do not find any reason why the Court should interfere with the
construction of the highway. However, if construction at the place
causes water logging, we intend to hear on the question whether
raising of such highway
will cause water-logging and submerging of villages. If so, then
what steps the respondents intend to take to ensure that the
villages are not submerged.
2 Notice
be issued on the respondents. Mr P.K. Jani, learned Government
Pleader accepts notice on behalf of the first, third and fourth
respondents. Counsel for the petitioner will serve two copies of
paper-book on him by Monday. Respondents may file reply affidavit
within two weeks. Direct service is permitted. Post the petition
for admission on 28th
April 2011.
3 In
view of the aforesaid order, no further order is required to be
passed in Civil Application No.4569 of 2011. The same stands
disposed of.”
After
the order was passed asking the respondents as to what steps they
intend to take to ensure that villages are not submerged, an
affidavit in reply was filed by the respondent no.3-GSRDC taking
stand as under :-
“9. It
is submitted that the subject of the petition falls in the project
length of widening the existing two lane to four of Halol-
Godhra-Shamlaji State Highway No.5, being carried out by Gujarat
State Road Development Corporation Ltd. (a Gujarat Government
enteprise) through the concessionaire. The project starts at Halol
Junction & traverses in Panchmahal District upto Babalia
crossing & remaining length in Sabarkantha District ends at
Shamlaji crossing meeting Delhi-Udaipur-Ahmedabad National Highway
No.8. The area stated in the petition falls under the project length
in Anandpura Kampa, the hemlet of Khalikpur village of Modasa Taluka
in Sabarkantha District. In this village at Km 476.617 of the road,
there is a minor bridge of 4 Nos. of 5.8M. span. In this road
widening project on western side of this bridge a similar bridge is
being built for the traffic of additional two lane. Thus no
additional bridge is constructed as stated by the petitioner. It is
further submitted that during the work of improvement of road during
2003-2005 at Km.476.872, a 3Nosx.0.90m pipe drain was replaced with
3.0M.x2.5M. box culvert, due to request of the villagers to increase
the waterway, by the then Executive Engineer, State Road Project
Division, Godhra. Which increased the water way area from 1.90 Sq.M.
to 7.50 Sq.M.(almost 4 times).
10. With
respect to averments made in para 4 (C) it is submitted that during
monsoon of 2006, heavy rains stormed Gujarat state resulting into
heavy floods in various districts. The area mentioned in the
petition, situated on Halol-Godhra -Shamlaji road also suffered
heavy flooding situation. On inspection of the current project of
widening of road in year 2009, after visiting the site, studying the
site condition & hearing various representation from local
residents by the authorities. The blockage of water disposal from
Box culvert (3.0Mx2.5M) at Km.476.872, (provided earlier in year
2005 in lieu of 3 Nosx 0.90M.pipe drain) was cleared by providing
open channel.
11. With
reference to averments made in para 4 (D) of the petition, I state
that the approach road to Anandpura hemlet of Khalikpur vilalge is
at Km.476.900 and the minor bridge of 4span of 5.8M. is located at
Km. 476.617. The distance between two places if only @ 280M. After
taking into consideration, demands of the lcoal residents,
additional Box culvert of 10.0M.X3.5M. at Km 476.702 for existing as
well as additional two lane road was provided which is under
construction. Thus, the waterway between the affected area is
increased by almost 10 times then the earlier waterway in the road
land width in the area of present petition, to avoid any flooding
due to widening or raising of road. This was informed to the local
residents & they were satisfied with this provision.
12. With
reference to averments made in para 4 (E) of the petition, I state
that as replied in foregoing paragraph, the authorities have taken
sufficient care by providing additional waterway to dispose the rain
water and avoid any drowning condition for the inhabitants of the
present petition area. However on downstream of the road, the
disposal of rain water does not fall within the jurisdiction of the
road authority.
13. With
reference to averments made in para 4 (F) to (J), I state that the
same are not substantially correct. I state that reaffirm and
reiterate what is stated in the foregoing paragraphs. The water way
now provided by the authority is much more then the capacity of the
minor river bridge. Hence no further improvement is necessary.
14. With
reference to averements made in para 4 (K), I state that the same
are not correct. I state that to improve the vertical profile of the
road the level are corrected by raising O.O4M. to 0.33M.in the
length from the minor bridge to approach of hemlet Anandpura campa
and 100M beyond. In further 2000M length the levels are raised from
0.04M. to 0.9M., depending on the profile of the existing road &
corrected vertical profile. But at no location the road is to be
raised by 4′ or more (i.e.1.2M. or more), as stated in the present
petition. Even during the floods the road was not over toped due to
flood water in the near vicinity of the approach road to the hemlet.
Thus further raising the road level will not affect the rain water
disposal due to heavy rains. No additional obstruction is likely to
cause by providing any bridge or other structure. On the contrary
the waterway of box culvert at km 476.672 is cleared by providing
open channel on downside of the road.”
Affidavit
in reply has also been filed by one M.G. Patel, Executive Engineer,
State Road Project Division, Vadodara, wherein the bank’s stand has
been taken as under :-
“4. I
state that we have already informed to the petitioner vide our
letter dated 29.12.2006 that the Design of the Halol Godhara,
Shamraji State High Way No.5 is prepared by the Expert Consultant
recognized by the world bank and it was also informed that when the
Gujarat State Road Development Corporation, Gandhinagar will take
the project on hand for four lanings and upgrading the Road, that
time the provision will be made so that the flow of the water in the
river should go faster. For the question raised by the petitioner
for water logging in Sankari River and in the matter we have
suggested the same to the Higher Authority i.e. Superintendent
Engineer, National Highway Circle, Vadodara.
5. I
submit that so far as the informing the authority is concerned, I
submit that we have already informed and suggested higher authority
to uggrade the Road Design by some modifications by letter no.
PB/GSHP-7/66/07 dated 06.02.2007. Looking to the heavy rainfall in
the monsoon of 2006-07. A copy of the letter dated 06.02.2007 is
annexed hereto and marked as Annexure R I to this reply.
6. I
say and submit that the three raw 900 mm dia pipe drain @ chainage
476/862 was replaced by 3 m X 2.5 m box culverts which increased
waterway from 1.9 sq.mtrs. (3 raw of 900 mm dia) to 10.00 sq.mtrs.
(3.0 X 2.5 mtrs box culverts) increase of around 300%) in 2005,
which was more than demanded. As the water way is increased and the
flooded water pass easily and speedily.
7. I
say and submit that moreover the Government Road & Building
Department has closed the office of the Executive Engineer, State
Road Project Division, Godhra dated 31.03.2010. The construction
project of Godhara Shamlaji Road was completed by w.e.f. from dated
31.07.2006 which was started from 20.01.2003 and the records of
Godhara Division is handed over to Executive Engineer, State Road
Project Division, Vadodara vide Government R & B Department
Resolution NO.EST/122008/2323/36/G dated 30.03.2010. A copy of the
same is annexed hereto and marked as Annexure R II to this
reply.”
Having
gone through the affidavit in replies, we were not satisfied with
the explanation as to how the problem has been taken care of by the
respondents. Therefore, on 3rd August, 2008, we passed
following order :-
“An
affidavit has been filed on behalf of the third respondent –
Gujarat State Road Development Corporation. Though detailed
affidavit has been made, but it has been not made clear as to how
much water logging which took place during rainy season in adjacent
to the road in question due to high-rise road construction. What
remedial measures should be taken to remove water accumulation if
they intend to have cause way or culvert box and as per the
agreement if the task is given to one or the other party, then they
should specifically answer to the same and will give time frame to
sort out problem. They should also give specific reply to the query
made by this Court on 8.4.2011 as to whether construction at the
place causes water logging or not. Though, prima facie, from the
photographs attached with the writ petition at page Nos.74 and 75,
it appears that water logging took place during rainy season because
of construction of road in question.
It
will be desirable that the Project Director, Gujarat State Road
Development Corporation shall remain present in the Court on the
next date. Learned counsel for the third respondent will inform the
officer for his appearance.
Post
the matter on 17.8.2011 within five cases.”
The
respondent no.3 once again filed an affidavit with photographs and
maps to show that the problem of water logging had cropped up only
in the year 2006 when the rains were torrential. In further
affidavit filed on behalf of the respondent no.3, it has been
explained as under :-
“2. I
say that, I am filing the present affidavit with a view to place on
record the efforts made by the authorities to mitigate the grievance
of the petitioner, raised in the captioned petition. I state that I
have perused the order passed by this Hon’ble Court on 03.08.2011
and I beg to place on record of this Hon’ble Court the following
details pursuant to the same. I state that for redressal of the
grievances of the petitioner as stated in the memo of petition, the
authority have taken adequate measures and due to the same this year
the problem of water logging has not arisen. I state that due to
inadvertence the some of the following details could not be placed
in my earlier affidavit, and I tender my unconditional apology for
the same.
3. It
is submitted that in the present petition, the petitioner has placed
on record the photographs of the area whether there was water
logging in the year 2006. It is submitted that, it is true that at
the relevant point of time the problem of water logging was
prevailing in the area mentioned in the petition. However, the road
was included in the SRP (State Road Projects) in the year 2004-06. I
state that before 2005 pipe culvert of 1.9 sq.mtr. was available for
the purpose of water way, however, in the year 2005 under the SRP
project the same was widened to the extent of 7.5 sq.mtr. It is
submitted that consequently the decision to further widen the 2 lane
road to 4 lane was taken in the 2009. It is submitted that
accordingly the work of road widening was taken up and the same at
present is in the final stage. It is submitted that so far as the
area mentioned in the present petition is concerned, the work of
road widening is already completed. It is submitted that as per the
present project one additional box culvert is already provided as
additional passage for disposal of water. It further submitted that
for the purpose of providing water way, in the present project
additional water way (Channel) is also prepared. Annexed hereto and
marked as Annexure I are the copies of the sketches which
clearly indicate that due to the efforts and the work undertaken by
the authorities, the problem of water logging in the area is
substantially taken care of.
4. It
is submitted that after passing of the order by this Hon’ble Court,
I have made site inspection of the area in question on 05.08.2011 as
well as on 10.08.2011. I state that in the present season of monsoon
no such water logging has taken place till date. Annexed hereto and
marked as Annexure II are the copies of recent photographs,
which clearly indicate that the problem of water logging in the area
in question is properly addressed by the authorities by providing
additional box culverts as well as new water channel for disposal of
water at the site. The blockage of water channel for disposal from
Box culvert (30.mtr x 2.5mtr) at Km.476.872 (provided earlier in
year 2005 in lieu of 3Nos x 0.90mtr. pipe drain) has been cleared by
providing open channel in the 2010 and due to the same this year the
problem of water logging has not arisen though since last more than
one week the area in question has received heavy rain fall.
5. It
is submitted that the averements made by the petitioner to the
effect that road level is likely to be raised to be extent of 4.5
feet is also not correct. The sketch annexed along with the present
shows the road length from Chainage 476.617 to 476.880 Km. It is
submitted that in the said road length maximum 0.401 mtr. (1.31
feet) height has been raised as part of the project. It is submitted
that raising of the height of the road, in the instant case, is not
going to create the problem of water logging as apprehended by the
petitioner. Annexed hereto and marked as Annexure III is the
copy of Level Difference Statement indicating the difference in
level of the road before the project and the existing road height.
6. It
is submitted that in the year 2006, there was unprecedented heavy
rain and die to the same the villagers have faced certain problems,
however, subsequently the authorities have made efforts to tackle
the situation by providing additional box culvert and widening of
the existing culverts at the site. The relevant date of rain from
2005 to 2011, clearly suggest that in 2006, there was flooding
situation in the said area. Annexed hereto and marked as Annexure
IV is the relevant data of rain in the respective years.
7. At
this stage, it would not be out of place to submit that the approach
road to Anandpura hemlet of Khalikpur vilalge is at Km. 476.890 and
the minor bridge of 4 span of 5.8mtr. is located at Km. 476.617. The
distance between two places is about 270 mtr.only.After taking into
consideration the relevant aspects, additional Box culvert of 10.0
mtr. X 3.5 mtr. at Km. 476.702 for existing as well as additional
two lane road has been provided. Thus, the waterway between the
affected area is increased by nearly 5 times then the earlier
waterway in the road land width in the area of present petition, to
avoid any flooding due to widening or raising of road height.”
Taking
into consideration the necessary steps which have been taken by the
respondents to ensure that in future, there would not be any water
logging problem in village, we would like to close this Public
Interest Litigation reserving liberty for the petitioner to approach
this Court in the event if such a problem once again crops up in
future inspite of all remedial measures, which have been taken by
the respondents to ensure that villagers may not have to face
problems of water logging. For the present, we are satisfied that
necessary steps have been taken to see that water way between
affected area has been increased nearly by five times than earlier
waterway to avoid any flooding due to rise in the height of the
road.
With
the above observations and liberty, we dispose of this petition
accordingly with no order as to costs.
Sd/-
(S.J.
MUKHOPADHAYA, CJ.)
Sd/-
(J.B.PARDIWALA,
J.)
/patil
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