{"id":98681,"date":"2010-07-02T00:00:00","date_gmt":"2010-07-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/prem-chandra-srivastava-vs-state-of-u-p-and-others-on-2-july-2010"},"modified":"2016-06-14T10:07:17","modified_gmt":"2016-06-14T04:37:17","slug":"prem-chandra-srivastava-vs-state-of-u-p-and-others-on-2-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/prem-chandra-srivastava-vs-state-of-u-p-and-others-on-2-july-2010","title":{"rendered":"Prem Chandra Srivastava vs State Of U.P. And Others on 2 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Prem Chandra Srivastava vs State Of U.P. And Others on 2 July, 2010<\/div>\n
                                                                AFR\n\n                                Judgment reserved on 30.04.2010\n                               Judgment delivered on 02.07.2010\n\n\n           Civil Misc. Writ Petition No.63057 of 2009\n        Prem Chandra Srivastava Vs. State of U.P. & Ors.\n\n\nHon. Sunil Ambwani, J.\n<\/pre>\n
Hon. Virendra Singh, J.\n<\/p>\n
       In this writ petition filed in public interest Shri Prem
\nChandra Srivastava, resident of Village and Post Kilhapur
\n(Tarhethi) Distt. Jaunpur, has on his behalf, and for the benefit of
\nthe residents of the area around river Varuna sought intervention of
\nthe Court against the diversion and relocation of the bridge over
\nthe river constructed by the Department of Irrigation, Government
\nof U.P. from public funds, to serve the individual interest        of
\nrespondent Nos.3 to 5, to connect their agricultural fields on either
\nside of the river. It is alleged that the site of the bridge proposed
\non the river Varuna amongst the 11 bridges to be constructed in
\npursuance to decision taken in the meeting dated 25.7.2007 of the
\nIrrigation Department, under the Chairmanship of the Hon’ble
\nMinister, on ‘Varuna Nala’, 0.00 k.m. to 38.3 k.m. in respect of
\nVillage Road Bridge (VRB) at K.M. 21.945 at Tarhethi Bazar, has
\nbeen changed illegally and arbitrarily only on an application given
\nby respondent No.3       seeking approval to connect the fields of
\nrespondent Nos.3 to 5.\n<\/p>\n
       On 23.11.2009      we called upon the respondents to file
\nreplies and stayed the construction of the bridge by an order as
\nfollows:-\n<\/p>\n
               “In this writ petition filed in public interest, the
\n       petitioner has raised an issue of construction of a bridge
\n       connecting the fields of private individuals, arrayed as
\n       respondent nos. 3, 4 and 5 for their benefit from public
\n       funds. It is stated that the public money is being spent on the
\n       constructions of the bridge on river ‘Varuna’ connecting the
\n       fields of respondent nos. 3, 4 and 5. There are no approach
\n                         2<\/span><\/p>\n
roads to the bridge on either side and that the alternate
\nbridge is only at a distance of 1.5 KM, for use by general
\npublic. It is also stated that the requisite permission under
\nSection 24 of the Water (Prevention and Control of
\nPollution) Act, 1974 for construction of bridge has not been
\ntaken from the U.P. Pollution Control Board.<\/p><\/blockquote>\n
        Shri Alok Kumar Yadav, learned counsel for
\npetitioner submits that the respondent nos. 3, 4 and 5 are
\ninfluential persons and that they have got the bridge
\nsanctioned from public funds for their individual use,
\nwithout any public purpose.\n<\/p>\n
        Learned Chief Standing counsel has accepted notice
\non behalf of respondent nos. 1, 6, 7, 8 and 9. Shri P.C.
\nShukla appears for U.P. Pollution Control Board-
\nrespondent no.2. Issue notice to respondent nos. 3, 4 and 5.
\nSteps in three days.\n<\/p>\n
        List\/put up on 30.11.2009.\n<\/p>\n
        Learned standing counsel has placed on record the
\ninstructions received by him and singed by the District
\nMagistrate, Jaunpur, and Sub Divisional Magistrate,
\nMachhalishahar, Jaunpur on 21.11.2009. In these
\ninstructions, it is stated that the respondent nos. 4 and 5 are
\npolice officers. The respondent nos. 3, 4 and 5 are real
\nbrothers and their mother is the Pradhan of Village
\nTarhethi. It has been denied that the bridge is being
\nconstructed only for the benefit of respondent nos. 3, 4 and\n<\/p>\n
5. The bridge over river ‘Varuna’ to connect District
\nJaunpur and village Sultanpur, District Allahabad, has
\nbecome old and dilapidated and keeping in view of the
\npublic interest in mind and the interest of the villagers, the
\nsubject bridge is being constructed. The flow of the river is
\nnot likely to be affected and that the constructions are in
\nprogress near the old bridge.\n<\/p>\n
        The District Magistrate and the Sub Divisional
\nMagistrate have thereafter in their instructions admitted
\nthat there is no ‘Chak’ road or a road for approaching the
\nbridge on both the sides. There is a Kharanja road, which
\npasses through the fields of respondents no. 3, 4 and 5, and
\nis being used by the villagers. On the other side of the
\nbridge in village Sultanpur, there is a road, which connects
\nit with pakki sarak. The District Magistrate, and the Sub
\nDivisional Magistrate have opined that it is not correct to
\nsay that the bridge will benefit only respondent nos. 3, 4 and\n<\/p>\n
5.
\n        A proposal of the utility; technical appraisal; and
\npermission from the State Government and U.P. Pollution
\nControl Board are essential for constructing any bridge. It
\nis admitted in the report of the District Magistrate, Jaunpur
\nand Sub Divisional Magistrate, Machhlishahar, Jaunpur,
\nthat there is no public road, which can be used to connect
\n                                  3<\/span><\/p>\n
         the bridge on both the sides. The Kharanja passes through
\n         the agricultural fields of respondent nos. 3, 4 and 5. It is
\n         doubtful whether this Kharanja can be used by general
\n         public and whether it is easily connected with the villages so
\n         that the bridge under construction can be used by general
\n         public.\n<\/p>\n
                 We are prima facie of the opinion that the public
\n         money is being used to benefit only a few individuals.\n<\/p>\n
                 We therefore direct that until 30.11.2009 the
\n         respondents shall not proceed to constructions of the
\n         bridge. A copy of the order may be given to Chief Standing
\n         Counsel tomorrow for compliance.”\n<\/p>\n
         Shri Alok Kumar Yadav, learned counsel for the petitioner
\nsubmits that the mother of respondent Nos.3 to 5 Smt. Israji was the
\nGran Pradhan of Village Tarhethi, Distt. Jaunpur. She utilised the
\nGram Sabha fund for constructions of a small bridge at a place,
\nwhere it connected the fields of respondent Nos.3, 4 and 5 on either
\nside of the river. The unauthorised constructions of the bridge
\nwithout technical clearance and permission           of the Irrigation
\nDepartment stopped the flow of the stream of the river during rainy
\nseason and threatened floods to the village and its vicinity on both
\nsides.\n<\/p>\n
         The Irrigation Department sanctioned construction of 11
\nbridges across river Varuna after desilting. One of the bridges was
\nproposed at Tarhethi Bazar at 1.54 km. from the Tarhethi Gaon,
\nwhere the old bridge of Gaon Sabha exists. Instead of constructing
\nthe bridge with six span, at Tarhethi Bazar, the Irrigation
\nDepartment started constructions at about 40′, from the old Gaon
\nSabha bridge.\n<\/p>\n
         The villagers had protested to the relocation of the site of
\nconstruction of the bridge. They approached their local Member of
\nLegislative Assembly Shri Subhash Pandey, who is also the
\nMinister of Culture in the State of U.P. by making a representation
\non 13.7.2009 to construct a new bridge. The applications were
\nforwarded by the local M.L.A. to Hon’ble the Chief Minister on
\n18\/20.7.2009 along with covering letter.         Shri Dinesh Kumar
\n                                4<\/span><\/p>\n
Dubey, Advocate, a resident of the village also moved an
\napplication on 5.11.2009 under Right to Information Act, 2005
\nbefore the respondent Nos.6 and 7, for information, whether any
\npermission from the Pollution Control Board has been obtained for
\nconstruction   of the new bridge in village       Tarhethi.   In the
\nmeantime, the constructions continued compelling the petitioner to
\napproach the Court. It is submitted that under Section 24 of the
\nWater (Prevention and Control of Pollution) Act, 1974 no person is
\npermitted to knowingly cause or permit to enter into any stream,
\nwhich may tend either directly or in combination with similar
\nmatters to impede flow of the water of the stream in a manner
\nleading or likely to lead to a substantial aggravation of pollution.
\nSub-section (2) provides that person shall be guilty of an offence
\nunder sub-section (1), by reason only of having done or caused to
\nbe done    any of the following acts, namely (a) constructing,
\nimproving or maintaining in or across or on the bank or bed of any
\nstream any building, bridge, weir, dam, sluice, dock, pier, drain or
\nsewer or other permanent works which he has a right to construct,
\nimprove or maintain.     Shri Alok Kumar Yadav alleges that on
\nenquiries the respondent Nos.5 and 6 could not show, the no
\nobjection certificate issued by the Pollution Control Board to
\nconstruct the bridge, and to the best of the knowledge of the
\npetitioner and other villagers no such certificate was ever obtained
\nfrom the Pollution Control Board.\n<\/p>\n
       Shri Yadav submits that the bridge is being constructed by
\nthe Irrigation Department at Village Tarhethi by changing the site,
\nfrom public funds only to connect Plot Nos.1711 and 1717 of
\nrespondent Nos.3, 4 and 5 situate in Jaunpur with their plots situate
\non the other side of the river falling in District Allahabad. The
\nconstructions are wholly unauthorised, and will deprive the
\nvillagers and other persons, of the construction and use of the
\nproposed bridge at Tarhethi Bazar. The disputed constructions of
\nthe bridge do not have a road in alignment on both sides of the
\n                                 5<\/span><\/p>\n
main road. The respondents have provided a connecting road on
\nboth sides, a way by a diversion at 900 to avoid the agricultural
\nfields of respondent Nos.3, 4 and 5, causing a permanent deviation
\non the approach road of the bridge. The entire activity is being
\ndone at the behest of respondent Nos.3, 4 and 5 having good
\nconnections in the Government.      There is no order passed by any
\ncompetent authority for such diversion.\n<\/p>\n
       Before considering the averments made in the affidavits
\nfiled by     Asstt. Engineer, Drainage Division, Fatehpur it is
\nnecessary to point out to the averments in the affidavit of Shri
\nSumit Benjamin Franklin posted as Regional Officer, U.P.
\nPollution Control Board, Varanasi. In para 7 of his affidavit he
\nhas stated that no representation has been received by the U.P.
\nPollution Control Board from the respondent Nos.3 to 9.         No
\napplication to obtain No Objection Certificate was submitted. The
\ncontents of Para 7 of the affidavit is quoted as below:-\n<\/p>\n
              “7. That in reply to the contents of paragraph No.19,
\n       and 26 of the writ petition it is submitted that no
\n       representation has been received by the answering
\n       respondent from the respondent Nos.3 to 9. No application
\n       to obtain No Objection Certificate has been submitted
\n       either. The aforesaid activity is gross violation of the
\n       provisions of Section 24 of the Water Pollution (Prevention
\n       and Control) Act, 1974. It is further submitted that as per
\n       the report of spot inspection carried out by the answering
\n       respondent, it is evident that construction of a bridge on
\n       the spot in question will severely affect the environment
\n       due to obstruction of flow of water in the river Varuna. A
\n       true and correct copy of inspection report dated 30.11.2009
\n       is being filed herewith and marked as Annexure No.C.A.1 to
\n       this counter affidavit.”\n<\/p><\/blockquote>\n
                                                (emphasis supplied)<\/p>\n
       The inspection report of Shri P.P. Srivastava, Asstt.\n<\/p><\/blockquote>\n
Environment Engineer and Shri B.K. Srivastava, Technical
\nAssistant dated 26.11.2009 annexed to the affidavit of Shri Sumit
\nBenjamin Franklin, Regional Officer, U.P. Pollution Control Board,
\nVaranasi reads as follows:-\n<\/p>\n
                                                           6<\/span><\/p>\n
“xzke rjgVh] ijxuk eqWxjk] rglhy eNyh’kgj tkSuiqj esa o:.kk
\nunh ij fueZk.kk\/khu iqy ds laca\/k esa fujh{k.k vk[;k A\n<\/p>\n
——————————————————————————————————————————\n<\/p>\n
         vkids funsZ’kkuqlkj mijksDr iz’uxr LFky dk fujh{k.k
\nv\/kksgLrk{kjh }kjk fnukad 26 uoEcj 2009 dks fd;k x;k A
\nvk[;k fuEuor gS
\n         eSygu >hy ls fudyus okyh o:.kk unh tuin tkSuiqj
\n,oW bykgkckn dh lhek ls cgrs gq, tuin okjk.klh esa jkt?kkV
\nds lehi xaxk feyrh gS A mDr fueZk.kk\/khu iqy tks
\neqWxjkckn’kkgiqj ls yxHkx 13 fdeh0 dh nwjh ij fLFkr xzke
\nrjgVh] eNyh’kgj tkSuiqj esa fLFkr gS A fujh{k.k ds le;
\nmifLFkr Bsdsnkj ds eka’kh Jh t; flag }kjk voxr djk;k x;k
\nfd iz’uxr LFky ij iqy dk fueZk.k vf\/k’kklh vfHk;Urk Mzsust
\n[k.M] Qrsgiqj }kjk djk;k tk jgk gS ftldh dqy yEckbZ yxHkx
\n40 ehVj] pkSMkbZ yxHkx 05 ehVj rFkk mWpkbZ unh dh lrg ls
\nyxHkx 2-68 ehVj fufeZr fd;k tkuk gS A mDr iqy ds fueZk.k
\ngsrq dqy N% [kEHkksa dk fueZk.k vkaf’kd :i ls fd;k x;k gS A
\nfujh{k.k ds le; fueZk.k dk;Z cUn ik;k x;k A xzke rjgVh ds
\nfuoklh Jh vej cgknqj] Jh ‘khrynhu] Jh HkksykukFk] Jh larks”k
\ndqekj ;kno ,oa xzke lqYrkuiqj tuin bykgkckn ds fuoklh Jh
\nyky cgknqj flag ,oa Jh jkeyky us voxr djk;k fd mDr iqy
\nds fueZk.k ls xzke rjgVh ,oa xzke lqYrkuiqj ds yksxksa dks tuin
\ntkSuiqj ,oa bykgkckn vkokxeu lqfo\/kktud gks tk;sxk A orZeku
\nesa fueZk.kk\/khu iqy ds nksuksa vksj ls dksbZ laidZ ekxZ ugha gS A unh
\nds nksuksa rVksa ij d`f”k ;ksX; Hkwfe gS A
\n         fueZk.kk\/khu iqy ls iwjc fn’kk esa yxHkx 1-5 fdeh0 dh nwjh
\nij rjgVh cktkj ds fudV ,d iqy iwoZ ls Lfkkfir gS bls orZeku
\nesa Hkh vkokxeu ds fy;s mi;ksx esa yk;k tk jgk gS tks xzke
\nrjgVh ijxuk eqWxjkckn’kkgiqj tkSuiqj ls mxzlsuiqj gksrs gq,
\nrglhy Qwyiqj] tuin bykgkckn dks tksMrh gS A nksuksa vksj
\niDdh lMd fufeZr gS rFkk buij vkokxeu lqpk: :i ls gks jgk
\nFkk A
\n         iqy ds fueZk.k gsrq cksMZ ls i;Zkoj.kh; n`f”Vdks.k ls dksbZ
\nvukifRr izek.k i= izkIr ugha fd;k x;k gS A
\n         mijksDr vk[;k lknj lwpukFkZ izLrqr gS A<\/p>\n
g0v0                                                                              g0v0
\n(ch0ds0 JhokLro)                                                            (ih0 ih0 JhokLro)
\noSKkfud lgk;d                                                              lgk0 i;kZ0 vfHk;Urk””\n<\/p>\n
                                7<\/span><\/p>\n
       In the counter affidavit of Shri Narendra Prasad Singh,
\nAsstt. Engineer, Drainage Division, Fatehpur it is stated in para 4
\nthat Varuna Nala originates from Mailhan Jheel of District
\nAllahabad.   The total length of Varuna Nala is 33.800 km. The
\nVaruna Nala meets at Village Bari, Distt. Allahabd, with another
\nNala namely Sahanva Tal Nala and after this place it is called as
\nVaruna river. There are total 11 bridges on Varuna Nala between
\nthe distance of 0.00 km. to 33.800 k.m.      The bridges are of two
\nkinds namely Village Road Bridge (VRB) and District Road
\nBridge (DRB).      Out of these 11 bridges there are 5 DRB and
\nVRB, one railway bridge and one cross regulator.          The water
\nflowing capacity of the Varuna Nala has been reduced due to
\nnarrowing of nala on the deposit of silt, and as such during rainy
\nseason the ‘nala’ gets flooded,     affecting 24 villages and their
\nagricultural land. The villagers and their representatives made their
\nrepresentations to raise the water flowing capacity and to improve
\nthe drainage capacity of Varuna Nala on which a project namely
\n‘Rehabilitation and Improving Drainage Capacity of Varuna
\nNala’ was prepared in order to provide facility to the general
\npublic. The project was sanctioned by the High Level Committee
\nof the Irrigation Department on 25.7.2007, in which administrative,
\ntechnical and financial approval was given.\n<\/p>\n
       It is further stated in the counter affidavit of the Asstt.
\nEngineer, Drainage Division, Fatehpur that the project included
\nthe reconstruction\/ extension of bridges situate on the Nala. The
\nbridges, which are in good condition are not being disturbed, only
\nextension is being made. The bridges, which are not in good
\ncondition, rather in dilapidated condition    are being replaced by
\nnew bridges, which is nearby or on the sides of the bridges. The
\nbridge in question is in dilapidated condition shown by letter ‘D’ in
\nthe site plan. In para 12 it is stated, “that bridge in question is
\nhaving both side connecting way since the initial construction of
\n                                  8<\/span><\/p>\n
this bridge and the general public uses this bridge from the way
\nexisting to connect this bridge.”\n<\/p>\n
       In para 14 and 15 of the affidavit it is stated that the total
\nwidth of the new constructed VRB is 4.25 mtrs. This bridge will be
\nconnecting the old ways already existing. The long section of
\nVaruna Nala in order to increase water          flowing capacity and
\ndrawing of V.R.B. was sanctioned by the Chief Engineer. In para
\n19 it is stated that the bridges are being constructed at the side of
\nold bridges. It is wrong to say that the bridge is being constructed
\nunder the influence of respondent Nos.3, 4 and 5 and the allegation
\nthat the bridge in question will stop the stream of ‘nala’.   The flow
\nof water     begins      from Mailhan Jheel to Varuna river, which
\nultimately meets      with Ganga river at Varanasi. In para 28 it is
\nstated that the bridge is 50% complete and the material is lying at
\nthe site of the river.\n<\/p>\n
       Annexure No.CA-1 to the affidavit of Shri Narendra Prasad
\nSingh, Asstt. Engineer, Drainage Division, Fatehpur shows that
\noriginal bridge VRB was proposed to be constructed at Tarhethi
\nBazar at 21.945 km., which has been shifted to Point ‘D’ (VRB) at
\nTarhethi Gaon at 23.485 km. The distance between the site of the
\nproposed bridge and the site where the bridge is being constructed
\nadmitted by the Irrigation Department is 1.54 kms.\n<\/p>\n
       The State has filed the affidavit of Shri Ramesh Chandra
\nYadav, Tehsildar, Machali Shahar, Distt. Jaunpur in which it is
\nstated that Varuna Nadi          flows between Distt. Jaunpur and
\nAllahabad.        A pakka bridge exists on the river at Kilhapur
\nTarhethi Bazar, which connects Tarhethi Tehsil Machchali Shahar,
\nJaunpur to Village Sokoshvir, Tehsil Handia, Distt. Allahabad but
\nthat this bridge is situate at 1.5. kms. towards west of the bridge
\nunder construction. In para 5 he states that the respondent No.3 is
\nmember of Gram Panchayat and respondent Nos.4 and 5 are police
\nofficers.    They are all real brothers.    Their mother is Village
\nPradhan of Village Tarhethi. The land towards Village Tarhethi is
\n                                 9<\/span><\/p>\n
recorded transferable bhumidhari of respondent Nos.3, 4 and 5,
\nwhereas the land in Village Sultanpur the other side of the village
\nis recorded in the name of Late Maharajdeen @ Matadeen son of
\nGurudeen, the father of respondent No.3, 4, and 5. In this manner
\nAraji No.1711\/0.547 hects. in Village Tarhethi is recorded in the
\nname of Shri Brij Lal, Jag Mohan and Sudhakar                sons of
\nMaharajdeen and Araji No.1717\/0.668 hects.           in the Village
\nTarhethi recorded in the name of          Brij Lal, Jagmohan and
\nSudhakar, sons of Maharajdeen and Israji Devi. He has denied in
\npara 7 that the bridge is being constructed only for the benefit of
\nrespondent Nos.3, 4, and 5.    Prior to construction of this bridge, a
\nbridge of small width was constructed for local needs. It has
\nbecome old and thus the construction of new bridge will be of
\nbenefit to the villagers on both sides of the river and will be
\nconvenient for the movement of the villagers on both sides.       He
\nhas also stated that some of the farmers of Village Sultanpur Tehsil
\nHandia Distt. Allahabad also have their land in Village Tarhethi
\nDistt. Jaunpur such as in Araji No.1717\/0.656 hects. of Shri Lal
\nPratap son of Udai Pal and Araji No.1712\/1.0.84 in the name of
\nShri Chote Lal, Shri Lal Bahadur, Ram Bahadur and Fauzdar, sons
\nof Shri Thakur Baksh.\n<\/p>\n
       In paras 9 and 11 he has denied that the bridge will raise any
\nissue of water logging or floods. In para 13 he states that there is
\nan old passage of ‘kachcha bricks’ to connect the old bridge
\nconstructed by Gaon Sabha near the new bridge by adding the
\nboundaries of Plot Nos.1717, 1709 and 1710. This kachcha road
\ntravels upto Gata No.1700, which is recorded as ‘nala’ on which a
\nkachcha brick road is constructed and which meets the pucca road.
\nGata No.1711 belongs to respondent Nos.3, 4 and 5 and Gata
\nNos.1709, 1710 belongs to       Chotte Lal and Ram Lal sons of
\nJagdev. The bridge under construction is adjacent to Gata No.1710.
\nThe kachcha road is used by the villagers. The road on the other
\nside of the river also meets the main road.\n<\/p>\n
                                 10<\/span><\/p>\n
       Shri Bal Mayank Misra, S.D.M., Machhli Shahar, Jaunpur in
\nhis affidavit states in paras 5, 6 and 7 as follows:-\n<\/p>\n
       “5. That it is further submitted that from the map it is
\n       clear that the distance between the damaged old bridge and
\n       new bridge is 40 Mts. From the map it is also clear that
\n       earlier the approach khadanja was proposed shown by
\n       letters from “Ka” and “Kha”, and connecting with the
\n       khadanja “Ga” and “Gha” over the Nali as recorded in the
\n       village records. The plot No. of Nali shown by Letters
\n       “Ga” and “Gha” is plot No.1700. The total distance of
\n       “Ka” and “Kha” is as follows:\n<\/p><\/blockquote>\n
       1.      Ka-Kha            90X3 =270 Sq. Mts.\n                                       =0.027 Hectares\n<\/pre>\n
       In 1711 0.013 Hectares- Brij Lal and others sons of
\n       Maharaj Deen
\n       In 1710 0.014 Hectares- Chotey Lal and others sons of Jag
\n       Dev<\/p>\n<\/blockquote>\n
       2.    Kha-Ga. Nali Par Kharanja, has been recorded in
\n       name of     Gram Sabha
\n             314 X 3.75 =      1177.5 Sq. Mts.\n<\/p><\/blockquote>\n
                         =     0.118 Hectares.\n<\/p><\/blockquote>\n
       6.     It is also submitted that from the map it is clear that
\n       the approach road shown by letters “Ka” to “Kha” are
\n       from the Bhumidhari of Plot No.1710 and 1711. Plot
\n       No.1710 belongs to Chotey Lal and Plot No.1711 belongs to
\n       respondent Nos.3, 4 and 5. For convenient perusal by this
\n       Hon’ble Court Photostat Copy of the Map is being filed
\n       herewith and marked as Annexure No.A1 to this affidavit.\n<\/p><\/blockquote>\n
       7.     That it is further submitted that in the order dated
\n       5.12.2009 it has been recorded that in paragraph 4 of the
\n       counter affidavit filed by Shri Ramesh Chandra Yadav,
\n       Tehsildar, it is stated that the old bridge is 1.5. kmts.
\n       towards west. In this regard it is submitted that in fact the
\n       said reference was to another bridge and was not with
\n       regard to the distance between the old bridge and new
\n       bridge in question. The deponent reiterates that the
\n       distance between the damaged old bridge and new bridge
\n       is 40 Mts.”\n<\/p><\/blockquote>\n
       Shri Satya Prakash Mishra, Tehsildar, Tehsil Handia, Distt.\n<\/p><\/blockquote>\n
Allahabad has also filed an affidavit stating therein that survey was
\nmade in pursuance to the order of the Court dated 5.12.2009 by the
\nNaib Tehsildar and map was prepared according to which the
\n                                 11<\/span><\/p>\n
approach road          towards bridge under construction has
\nbifurcated the plots belonging to respondent Nos.3, 4 and 5
\nnamely Plot No.187, 188, 275 and 276. He has stated that now
\nthe approach road is going at the one end of bhumidhari belonging
\nto the said respondents as shown in the map by letters ‘Ka’ ‘Kha’
\n‘Ga’. The total distance as shown in the report by letters ‘Ka’ and
\n‘Ga’ is 180 mts. and the total area is around 630 sq. mtrs. As per
\nthe measurement carried out by the answering respondent the
\ndistance between old bridge and the new bridge is 40 mtrs. and the
\nwidth of the approach road is 12 feets as has been shown by letters
\n‘Ka’ ‘Kha’ and ‘Ga’.\n<\/p>\n
       He further states in para 5 that the bhumidhars of the plots
\nfrom whose land the approach road is going, have already
\nundertaken to surrender the said land for being used as public road.
\nTheir statement that they are ready to surrender has been annexed
\nto the affidavit.\n<\/p>\n
       We repeatedly requested the Addl. Advocate General to
\nshow us the permission of the competent authority, with revised
\ntechnical, administrative and financial appraisals, for shifting the
\nbridge from its old site at Tarhethi Bazar km. 21.945 to Tarhethi
\nGaon km. 23.485; the permission of the Pollution Control Board,
\nand to demonstrate whether the approach road would be running in
\na straight line, and the provision of village road (chak road) through
\nthe fields of respondent Nos.3, 4 and 5. He has filed an affidavit of
\nShri Narendra Prasad Singh, Asstt. Engineeer, Drainage Division,
\nFatehpur stating as follows:-\n<\/p>\n
              “3. That so far as the justification regarding
\n       selecting the site for the purposes of construction of the
\n       New Bridge is concerned, it is submitted that earlier on the
\n       Phulpur side of district Allahabad the road was bifurcating
\n       the land of respondent Nos.3, 4, 5 almost middle of their
\n       plots. It is further submitted that the said respondent Nos.3,
\n       4 and 5 in fact made the request to take their land for the
\n       purposes of approach road from the right side of their land
\n       shown in the map by letters ‘A’ and ‘B’. It may be clarified
\n       that earlier the approach road is shown in the map by letters
\n       ‘C’ and ‘D’.\n<\/p><\/blockquote>\n
                                12<\/span><\/p>\n
              4. That it is further submitted that the said approach
\n      road connects Village Tarhati of Jaunpur District to Village
\n      Sultanpur Gaon of Allahabad District. The total distance
\n      between the two Villages is around 400 Mts. The distance
\n      between the old bridge and the new bridge as measured by
\n      the answering respondent is 35 Mts.\n<\/p><\/blockquote>\n
              5. That it is also submitted that in fact the availability
\n      of the land was ensured and the Bhumidhars of the land
\n      from whose land the approach road was to be constructed
\n      to connect it within the main road. The Bhumidhars of the
\n      respective plots has undertaken to be part of their land for
\n      being used as public road permanently, leaving all their
\n      rights over the said land. For convenient perusal by this
\n      Hon’ble Court Photostat Copy of the Map together with the
\n      report submitted Executive Engineer, Drainage Division,
\n      Fatehpur dated 8.12.2004 along with documents annexed
\n      therewith is being filed herewith and marked as Annexure
\n      No.A-1 to this affidavit.\n<\/p><\/blockquote>\n
              6. That from the aforesaid facts it is clear that
\n      precaution has been taken to provide the approach road for
\n      being used as public road, while constructing the new
\n      bridge, and the justification for selecting the site was in fact
\n      the land to be provided by the owners\/ Bhumidhars towards
\n      district Allahabad side, as they wanted to safe their land to
\n      be bifurcated in two part, as was the position earlier, though
\n      they showed their readiness and willingness to be part of
\n      their Bhumidhar land and requested for taking the same on
\n      the one hand of their Bhumidhar Land as shown in the map
\n      by letters ‘A’ and ‘B’.”<\/p><\/blockquote>\n
      Anneuxre A-1 verified by the Executive Engineer, Drainage
\nDivision, Fatehpur would show that on both sides of bridge under
\nconstruction approach the proposed kacha road turns at 900 to meet
\nthe brick layered road to the connecting roads. These 90 0 turns
\nhave been provided to avoid the agricultural fields of respondent
\nNos.3, 4 and 5. The certificate of the same Executive Engineer
\ndated 18.12.2009 verifies that the site of the original
\nsanctioned bridge (VRB) has been changed. The old bridge,
\nwhich was constructed       from the fund of Gaon Sabha            was
\nproposed to be dismantled in the proceedings of the meeting dated
\n25.7.2007. This old bridge crossed the river to Village Sultanpur
\nthrough the fields of Shri Brij Lal Yadav.           At the time of
\nrehabilitation of the Varuna Nala, the said farmer made a request
\n                                13<\/span><\/p>\n
for construction of a village road bridge from one side of his field
\nand accordingly works was started 35 kms. upstream. On one side
\nof the bridge under construction is Village Tarhethi in Distt.
\nJaunpur and on the other side there is Village Sultanpur Distt.
\nAllahabad connecting through kachcha road, and that          for the
\nshifting both the tenure holders        have given their written
\npermission.\n<\/p>\n
       We have carefully examined the records and find that there
\nwas no proposal to revive of the old bridge, shown to be a Private
\nRegulator. It was proposed to be dismantled as unauthorised
\nbridge. The High Level Committee in its meeting dated 25.7.2007
\nconsidered the technical, administrative and financial appraisals,
\nand proposed a (VRB) Village Road Bridge at km. 21.945 at
\nTarhethi Bazar.    The respondent Nos.3, 4 and 5           made an
\nindividual request to change the site of the proposed VRB (Village
\nRoad Bridge), 1.5 km., upstream towards Mailhan lake at Tarhethi
\nVillage at 23.485 km. It is apparent that the site was changed for
\nthe benefit of respondent Nos.3 to 5, and some villagers, on the side
\nof Allahabad without there being any connecting road. Further in
\norder to save the passage, passing through the agricultural fields of
\nrespondent Nos.2, 3 and 4,          a 900 diversion     is proposed
\nimmediately after the bridge to connect kachcha road, to lead to the
\nmain road.    The entire effort is totally unauthorised, to benefit
\nsome farmers. The diversion of the site did not have technical
\napproval of the competent authority namely Principal Secretary,
\nIrrigation, Government of U.P.; Rehabilitation Commissioner,
\nBoard of Revenue; Chief Engineer, Irrigation, Government of U.P.;
\nChief Engineer, Project and Planning; Chief Engineer Mechanical,
\nwho had participated in the meeting dated 25.7.2007, and the U.P.
\nPollution Control Board. The site and the approach roads were not
\nprovided and prepared. The larger public purpose was given up to
\nsuit the convenience of some of the villagers on either side of the
\n                                 14<\/span><\/p>\n
relocated site at 1.54      kms. from the original        proposed
\nconstruction.\n<\/p>\n
       By an undated letter Shri Brij Lal Yadav and Shri Chhote
\nLal   made a request to Executive Engineer, Drainage Division,
\nFatehpur, to relocate the bridge upstream for which they were
\nready to give their land for approach road, on the right side to
\nconnect the main road. It is apparent that Shri Brij Lal Yadav was
\naware that the old bridge, about 40 mtrs. upstream constructed
\nfrom the funds of Gaon Sabha, was not planned to be renovated or
\nreconstructed. Infact the proposals approved by the High Level
\nCommittee on 25.7.2007, provided for construction of bridge 1.54
\nkms. downstream      at Tarhethi Bazar at      21.945 km.       The
\nmisinformed and misconceived application of Shri Brij Lal Yadav
\nwas considered by the Executive Engineer, Drainage Division,
\nFatehpur. He changed the site of the bridge, 1.54 km. upstream on
\nhis own, without seeking any technical, financial or administrative
\napproval of High Level Committee consisting of experts and the
\nU.P. Pollution Control Board.\n<\/p>\n
       The documents brought on record and the facts stated in the
\naffidavit discussed as above, clearly demonstrate that construction
\nof bridge for the benefit of the residents      of the entire area
\nconnecting the main roads, was diverted and that the bridge was
\nrelocated 1.54 kms. upstream at Tarhethi Gaon,         only on the
\nrequest of Shri Brij Lal Yadav and for convenience of some farmers
\nhaving their agricultural lands on both sides of relocated site. The
\nExecutive Engineer acted on is own without seeking any technical,
\nadministrative or financial approvals and the approval of the U.P.
\nPollution Control Board, in relocating the site, and     started the
\nconstructions.\n<\/p>\n
       We have no hesitation in recording our opinion that the
\nentire action was taken on the request of Shri Brij Lal Yadav on
\nwhich the public funds for construction of bridge sanctioned by
\nHigh Level Committee on 25.7.2007, were diverted to connect the
\n                                   15<\/span><\/p>\n
agricultural fields of respondents. The respondent No.6 misused
\nhis authority on the behest of the private persons in directing the
\nconstruction of bridge from public funds, in violation of Section
\n24 of the Water (Prevention and Control of Pollution) Act, 1974.
\nThe construction of the bridge at the disputed site has not been
\napproved by the technical experts. Further he did not consider that
\nthe turn of the approach road at 900 angles on both sides to avoid
\nagricultural fields of respondents, and some other villagers, will
\npermanently obstruct the free flow of traffic upto the approach
\nroads. Even as a layman, we can say that if approach roads to the
\nbridge turns at 900 on the slopes on both sides, within a short
\ndistance, the design will not only obstruct the traffic but will also
\nmake the roads unsafe for use by the travellers.\n<\/p>\n
       This writ petition filed in public interest is thus found to be
\na bonafide litigation for the welfare of the residents of the region.
\nThe petitioner has successfully established that a Village Road
\nBridge proposed to be constructed after technical, administrative
\nand financial approvals of the High Level Committee amongst the
\neleven bridges on the river, has been relocated without any
\nauthority and approval of U.P. Pollution Control Board       for the
\nbenefit of certain individuals.\n<\/p>\n
       The writ petition is allowed. The respondents are directed
\nto stop the constructions of the Village Road Bridge at Tarhethi
\nGaon at 23.485 km. on Varuna Nala, and to proceed to construct
\nthe Village Road Bridge, at the sanctioned and approved site at
\nTarhethi Bazar, at 21.945 km.          It will be open to the State
\nGovernment to realise the loss caused on the part constructions of
\nthe bridge at Tarhethi Gaon from the Executive Engineer, Drainage
\nDivision, Fatehpur. The petitioner will be entitled to costs of
\nRs.10,000\/-, to pursue this bonafide litigation in public interest.
\nThe petitioner has not only served public interest in checking the
\nmisuse of the public funds, but has also saved the villagers, and the
\nresidents of the area, from the threat of possible flooding of the
\n                              16<\/span><\/p>\n
river and the consequent loss to the farmers on its banks. The
\nIrrigation Department will ensure compliance of Section 24 of the
\nWater (Prevention and Control of Pollution) Act, 1974 in seeking
\nnecessary permission of the U.P. Pollution Control Board, before
\ncarrying on and continuing constructions of the bridge in question
\nand on any of the bridges on Varuna Nala.\n<\/p>\n
Dt.02.07.2010
\nSP\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Prem Chandra Srivastava vs State Of U.P. And Others on 2 July, 2010 AFR Judgment reserved on 30.04.2010 Judgment delivered on 02.07.2010 Civil Misc. Writ Petition No.63057 of 2009 Prem Chandra Srivastava Vs. State of U.P. & Ors. Hon. Sunil Ambwani, J. Hon. Virendra Singh, J. In this writ petition filed in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-98681","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nPrem Chandra Srivastava vs State Of U.P. 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