WPMS/3435/2018 of JASHODHAR Vs UNION OF INDIA

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

ON THE 30[TH] DAY OF DECEMBER, 2021

BEFORE:

HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI

Writ Petition (M/S) No. 3435 of 2018

BETWEEN:

Jasodhar & others. …Petitioners

(By Mr. T.A. Khan, Senior Advocate, assisted by Mr. Ravi Shankar Kandpal, Advocate, holding brief of Mr. Aditya Kumar Arya, Advocate)

AND:

Union of India & others.

…Respondents

(By T.S. Phartiyal, Additional Chief Standing Counsel for the State of Uttarakhand; Mr. Shailendra Singh Chauhan, Advocate for respondent no. 2 & Mr. K.P. Upadhyay, Senior Advocate, assisted by Mr. Prem Prakash Bhatt, Advocate for the interveners)

JUDGMENT

By means of this writ petition, petitioners

have sought the following relief:-

“I. To issue writ, order or direction in the nature of prohibition, restraining to respondents from raising any construction of the road which is going to be constructed between village Sakdena to Balwadi (Part B) via Dubar Kamlekh within Tehsil Pati, District Champawat, between point “B” to “C” as shown in the site plan annexed in the writ petition as annexure no. 3 to the writ petition, by taking the land of the petitioners.”

2. There is revenue village called “Tak-Balwadi”, in Tehsil Pati, District Champawat, which consists of two hamlets, namely, “Tak” and “Balwadi” which are about 2 kilometers apart. The expression “hamlet” is referred as “Tok” in

vernacular, therefore, it can also be said that the aforesaid village consists of Tak Tok and Balwadi Tok. House and land of the petitioners are situate in Tak Tok of the aforesaid revenue village.

3. Mr. T.A. Khan, learned Senior Counsel appearing for the petitioners submits that as per the guidelines issued by Government of India, connecting roads can be constructed only when the concerned village has minimum population of 250 persons; while, Balwadi hamlet has population of less than 100 people. He further submitted that the road in question was sanctioned without obtaining prior consent from residents of Tak hamlet and the Gram Sabha had also not submitted any proposal for construction of such road. He further submitted that persons, whose land was affected by construction of road have not been compensated. He further submitted that Tak hamlet of aforesaid village is already connected to motor road, therefore, construction of new road for connecting Balwadi hamlet is not needed at all and, petitioners may lose their valuable agricultural land due to construction of road.

4. Per contra, learned counsel appearing for the State submitted that this is politically motivated petition; residents of Tak hamlet want to deprive residents of Balwadi hamlet from road connectivity; population of village Tak-Balwadi is 254, therefore, it is eligible for road connectivity as per the guidelines issued by Central Government, which provides that village with population of 250 persons is eligible to be connected by All Weather Road. Learned counsel appearing for the State

further submitted that the road in question was sanctioned in view of the written request made by Gram Sabha Tak-Balwadi, which was signed, amongst others, by petitioner no. 1 and also Village Pradhan of Gram Panchayat Tak-Balwadi. The said written request signed by scores of villagers is on record as Annexure-5 to the counter affidavit filed by respondent no. 2. Learned State counsel further submitted that sum of `51,25,516.84/- has been released by the State Government for payment as compensation to the affected persons.

5. It is admitted to the petitioners that their Tok (Hamlet) is having road connectivity, while residents of Balwadi Tok (Hamlet) have to cover distance of more than 2 kilometers by foot in the absence of road connectivity. In such view of the matter, there has been long pending demand of residents of Balwadi Tok for road connectivity.

6. Considering the difficulty faced by residents of Balwadi Tok, State Government decided to provide road connectivity to them and administrative approval for construction of road was granted by Secretary, Rural Development Department vide order dated 18.03.2010. Subsequently, detailed project report (in short “DPR”) was prepared by the authorized agency after detailed survey and ultimately financial approval, for construction of road, was given by the State Government vide order dated 14.05.2018.

7. As per the averments made in the counter affidavit dated 30.06.2019 filed on behalf of respondent no. 2, total approved cost of construction

of road, which is 4.50 kms long, is `232.17 lakh. In the said counter affidavit, it has been stated that 2.70 kms long road has already been constructed.

8. Learned counsel appearing for the respondents submitted that the road in question is going to benefit not only residents of Balwadi Tok of the aforesaid revenue village, but it will also benefit persons residing in adjoining villages situate on the lower part of the same hillock, who do not have any road connectivity.

9. Learned counsel appearing for the State has invited attention of this Court to the pleading made in para 30 of the counter affidavit filed by respondent no. 2, wherein the extent to which the land belonging to each of the petitioners is likely to be affected due to road construction, has been indicated. Perusal of the same reveals that land of petitioner nos. 7, 9 & 11 is not going to be affected at all by road construction; while, the extent of land belonging to petitioner nos. 4, 5, 6, 8 & 10, likely to be affected, is less than 4 square meters; and land of petitioner no. 2 would be affected to the extent of 23 square meters; while, land of petitioner nos. 1 & 3 would be affected to the extent of 46 square meters. Learned counsel appearing for the State further submits that roads under Pradhan Mantri Gram Sadak Yojna (PMGSY) are constructed when residents of the village give their consent and offer their land for road construction, although price of land is paid to them later. He assures the Court that all the villagers, whose land is taken for road construction, would be compensated as per the

circle rates determined by Revenue Collector of the District.

10. Mr. K.P. Upadhyay, learned Senior Counsel appearing for interveners submits that Tak-Balwadi is one revenue village with two hamlets, namely, Tak & Balwadi and population of said village is more than 250, therefore, as per the guidelines issued by Central Government, said village is eligible for construction of road under PMGSY. He further submits that population of Balwadi hamlet cannot be seen in isolation and population of entire village has to be taken into consideration while considering its suitability for road construction. He drew attention of this Court to para 14 of the affidavit filed in support of Impleadment Application where it is stated that upper part of village Tak Balwadi is close to existing road, however, for reaching lower part of the village, one has to go two kilometers downhill at slope of about 70 degree through footpath, due to which, people residing in Balwadi hamlet are facing all kinds of difficulties every day. He has drawn attention of this Court to para 15 of the affidavit where it is stated that road in question shall also benefit residents of adjoining villages, namely, Dantola, which is 400 meters downhill from Balwadi and also Ghatwadi, which is inhabited by persons belonging to Scheduled Caste and other weaker sections of society. Thus, according to him, the contention made by petitioners that no road is needed in the area, is unacceptable. He further submitted that instant writ petition is an example of abuse of process as the same has been filed due to village politics and the interim order passed in this writ petition has resulted in stoppage of road

construction, which has seriously prejudiced the persons residing in such localities, which do not have road connectivity.

11. Mr. T.A. Khan, learned Senior Counsel appearing for the petitioners, however, refutes the submission made on behalf of respondent no. 2 that the villagers have consented for giving their land for construction of road. He submits that signatures of villagers on the consent letter are forged and further that population of Balwadi hamlet is only 88, therefore, there is no justification for providing road connectivity to Balwadi, especially when Tak hamlet of the village is already connected with motor road.

12. The relief claimed in the writ petition cannot be granted, while exercising power of judicial review. This Court will not come in the way of road construction work, especially when road connectivity is provided to remote inaccessible villages in hills. Roads are sine qua non for development in distant villages of hill districts, as in the absence of road, no economic activity takes place which leads to poverty. The cost of transporting agricultural produce to nearest road-head, in the absence of road, sometimes is more than the price, which that produce may finally fetch in nearest Agricultural Produce Marketing Committee, which acts as disincentive to the agriculturists residing in such villages. During medical emergency and natural calamity also, availability of road helps in saving lives, as without roads, the time taken for taking person from his village to nearest hospital, many times, results in loss of valuable lives. In other

words, roads in hill villages bring prosperity and create employment opportunities, while absence of road, makes village in hills gloomy, therefore, people residing in remote villages of hill districts are clamouring for road connectivity to ensure that they also get fruits of economic progress.

13. Hon’ble Supreme Court in the case of State of Himachal Pradesh and another v. Umed Ram Sharma and others, reported in (1986) 2 SCC 68 has held that “for residents of hilly areas, access to road is access to life itself”. Para nos. 11, 12 and 13 of the said judgment are reproduced below:-

“11. It appears to us that in the facts of this case, the controversy lies within short compass. It is well-settled that the persons who have applied to the High Court by the letter are persons affected by the absence of usable road because they are poor Harijan residents of the area, their access by communication, indeed to life outside is obstructed and/or prevented by the absence of road. The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in article 21 of the Constitution and in the facts of this case read in conjunction with article 19(1)(d) of the Constitution and in the background of article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under article 21 to his life and that right under article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well-settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our Constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible

society has constitutional obligation to provide roads for communication.

12. We need not in this connection refer in detail to the numerous decisions. Reference may, however, be made to in re: Sant Ram, Kharak Singh, A.V. Nachane v. Union of India, Olga Tellis v. Bombay Municipal Corpn., Municipal Council Ratlam v. Vardhichana and Franchis Coralie Mullin v. Administrator, Union Territory of Delhi.

13. The persons who have complained about the non- availability of road are the persons who have been affected by the denial of proper roads in hilly state. Therefore, there is no dispute as to their locus. There is also no dispute that the state Government was willing and has indeed sanctioned money for the construction of the road. Constitutional and legal imperative on the part of the State to provide roads for residents of hilly state is not in issue. So in this petition we need not examine how for is the obligation to provide roads.”

14. From pleadings made in the writ petition, it appears that the sole aim of petitioners is to derail the work of road construction, as they are already connected with motor road. In other words, they do not want persons residing in other hamlet of the same village to be given facility of road. The fate of persons residing in other hamlet cannot be permitted to be decided by petitioners, especially when State Government, upon considering all relevant aspects, has released necessary funds for construction of road. If the averment made by respondent no. 2 in his counter affidavit is to be believed, then substantial part of the road is already constructed.

15. Learned counsel for the petitioners disputes the submission made on behalf of

respondents that petitioners had signed on the consent letter and submits that their signatures have been forged, however, there is no such averment in the writ petition. Even otherwise also, the question as to whether signatures of the petitioners in the consent letter are forged, or not, cannot be gone into writ proceedings under Article 226 of the Constitution.

16. This Court finds substance in the contention raised on behalf of respondents that population of village Tak-Balwadi is more than 250, therefore, eligibility of the said village for connecting road under PMGSY cannot be questioned. Even otherwise also, the guidelines issued by Central Government are meant for guidance of the subordinate officers, and they do not have statutory flavour, therefore, provisions contained in the guidelines cannot be enforced as law.

17. Regarding question of compensation, statement has been made on behalf of respondent no. 2 that all the affected persons would be adequately compensated for the land taken as per circle rates and funds have also been released for the purpose. Therefore, this Court hopes and expects that the amount due as compensation would be paid to all the affected persons, including petitioners, as early as possible, preferably within six months from the date of production of certified copy of this order.

18. In such view of the matter, this Court does not find any reason to interfere in the matter.

19. dismissed. No order as to costs.

Accordingly, the writ petition fails and is

Interim order, if any, stands vacated.

Navin

(MANOJ KUMAR TIWARI, J.)