Gauhati High Court disposes of PIL seeking change in proposed National Highway 127B alignment

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The Gauhati High Court has recently disposed of a Public Interest Litigation (PIL) filed seeking a direction to the respondents not to divert the scheme of National Highway No. 127(B) from the earlier survey conducted in 2012, which, if permitted, will cause heavy loss and injury to people, including the villagers of Kismat Hasdaha Part-II, III and Debottar Hasdaha Part- IV.

In the PIL filed by the villagers of Kismat Hasdaha Part-II, III and Debottar Hasdaha Part- IV, the further prayer was to suspend all operations of the respondents in connection with the diversion of alignment of National Highway No. 127(B) from the bridge of Shulibhangi to Dhelkhowa.

The National Highway Authorities, pursuant to a survey conducted in 2012 for construction of National Highway No. 127(B) demarcated the portion/area through which the National Highway was proposed to be constructed. The said area was earlier maintained by Assam PWD (NH Works), Government of Assam. Thereafter vide Gazette Notification bearing No. S.O.3866 (E) dated 08.12.2017, the stretch of National Highway No. 127(B) was handed over to the National Highways Authority of India. A feasibility study was conducted through the Consultant Company, CE Testing Company Private Limited in 2015, feasibility Study/preparation of the DPR. The feasibility study conducted two alignments in the particular area in question;

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Alignment Option I- Newly proposed Bypass Alignment.

Alignment Option- II Follow the existing National Highway.

Some residents submitted a representation before the Deputy Commissioner, Dhubri for realignment of the proposed National Highway No. 127(B) i.e. Alignment Option-II through the existing National Highway at the portion of Kalarhat Panchayat. The said stretch of National Highway was with the Assam Public Works Department (NH Works), Government of Assam. However, on or upon comparative study conducted by the DPR Consultant, the authority decided to proceed with the Alignment Option-I (Newly proposed Bypass Alignment). The decision was taken in a review meeting dated 05.10.2017 and the same was conveyed to the Director General (Road Development) and Special Secretary, Government of India MORT&H, New Delhi vide communication dated 11.12.2017.

Thereafter, representation was received by the Deputy Commissioner, Dhubri dated 04.09.2018 submitted by some of the villagers regarding the change of alignment of the National Highway No. 1217(B). The villagers represented the proposed constructions of the National Highway No. 127(B) should be as per the Alignment Option-II (Follow the existing National Highway). This application was forwarded to the NHIDCL who however justified construction of the proposed National Highway No. 127(B) through the Alignment Option-I. The Assistant Settlement Officer in its communication dated 27.08.2019 addressed to the Deputy Commissioner, Dhubri informed that after physical verification of the area for the newly proposed alignment of National Highway No. 127(B) on 27.10.2018 along with SDO (Sadar), Magistrate and Engineers of the Consultants, Newly submitted alignment (approved) was selected. Accordingly, the authorities concerned approved the new alignment i.e. Alignment Option- I for construction of that portion of the National Highway No. 127(B).

A counter-affidavit was filed on behalf of respondents. It is averred that the NHAI selected alignment Option- I (Newly proposed Bypass Alignment) on the basis of the feasibility study and the detailed projected report prepared. The State respondents through the Deputy Commissioner, Dhubri also took a similar stand supporting the contention of the NHIDCL that the proposed construction is to be made by following alignment option-I (Newly proposed Bypass Alignment).

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The said contentions are disputed by the petitioners, their reply affidavit contending that the reasons cited by the NHIDCL and the State Authorities of existence of kabrasthan and temple etc. are not supported in revenue maps and drawings. The petitioners alleged that the change of alignment from alignment Option-II to the Alignment Option-I is at the behest of the private contractor and other interested parties for their personal gains and which in turn is likely to cause loss to the public exchequer and to the Government. It is, therefore, contended that the change of Alignment from Alignment Option-II to Alignment Option-I is arbitrary and colorable and should not be permitted.

The Division Bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia noted that in Alignment Option-I there is a requirement of re-settlement/rehabilitation for only six hutments. Whereas under Alignment Option-II, there are 56 commercial structures and one mosque which will require rehabilitation/resettlement. The cost projected under Alignment Option-I is Rs 18 Crore as compared to Rs 22 Crore under Alignment Option-II. That apart, the other merits and demerits brought out by the respondents are that under Alignment Option-I the length is minimum as compared to Alignment OptionII. The Alignment Option-I is entirely green field alignment and, therefore, the construction process will be quicker and easier than Alignment Option-II. It is further mentioned that under Alignment Option-II, the respondents have stated that there is difficulty in respect of future widening and during the construction, traffic management would be difficult (as Alignment Option-II is through the existing National Highway).

It is observed by the Court that the petitioners have not contended that the grounds for change of the Alignment from Alignment Option-II to Alignment Option-I are unfounded and non-existent.

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The petitioners contended that the entire change of alignment is only because of the vested interests of one Ibrahim Ali Sk whose cellular phone tower erected over his land is likely to be affected/demolished, if the proposed construction is made through Alignment Option-II. The petitioners further contend that it is only to protect the vested interests of Ibrahim Ali Sk that the respondents have shifted from Alignment Option-II to Alignment Option-I. The petitioners also contended that certain pillars were fixed to demarcate the area through which the proposed constructions were to be made as per Alignment Option-II and there was no complaint from any person at that point in time. As such, it is evident that the subsequent change of alignment option is only to protect vested interests of some persons and, therefore, not in public interests. The petitioners also dispute the averment of the respondents regarding the existence of any mosque in the area covering Alignment Option-II.

The petitioners have in their reply affidavit made some suggestions as to how the proposed construction is to be made by following Alignment Option- II by offering some technical suggestions in respect of proposed constructions of bypass. They have also alleged mala fide and vested interests of one- Ibrahim Ali Sk and that the departmental authorities are in league with some private individuals including the said Ibrahim Ali Sk in shifting the alignment of the proposed construction from Alignment Option-II to Alignment Option- I.

However, the Court observed that the said Ibrahim Ali Sk or other persons against whom the allegations are made have not been arrayed as party respondent in the present proceedings. That apart, the allegations made are not supported by any credible materials which can be referred to. The technical suggestions offered by the petitioners, whether possible or not, is not within the competence of this Court to decide and it would be in the interest of all concerned to leave such technical details to be decided by the respondents authorities and the experts responsible for undertaking the construction. It is also a further grievance of the petitioners that the representations submitted by the petitioners before the Deputy Commissioner, Dhubri has not been attended to adequately.

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In view of the above discussions, the Bench did not find any merit in the prayers made in the PIL and, therefore, the Court declined to issue any specific directions to the respondents in terms of the prayers made.

“Since, the petitioners contend that they have also ventilated their grievances by representations before the Deputy Commissioner, Dhubri and which has not been attended to, we give liberty to the petitioners to approach the Deputy Commissioner, Dhubri for their grievance. If such a representation is filed within 15 (fifteen) days from the date of this order, the Deputy Commissioner, Dhubri will decide on the representations filed after giving adequate opportunities of hearing to the petitioners and all other affected and connected parties and thereupon pass a speaking order in the said representation”

-the order reads.

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