THE HIGH COURT OF UTTARAKHAND AT NAINITAL Review Application No. 33 of 2011 Nagar Palika, Bageshwar & others. Applicants In Writ Petition P.I.L. No. 9 of 2010 Umesh Takuli & another. .……… Petitioners Versus State of Uttarakhand & others. ……… Respondents Mr. B.C. Pande, Senior Advocate, with Mr. Hari Om Bhakuni, Advocate, for the review applicants. Mr. Manoj Tiwari, Senior Advocate, with Mr. Bhagwat Mehra, Advocate, for the petitioners. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. Dated: 21st May, 2011 BARIN GHOSH, C. J. In the writ petition, in the form of a ‘Public Interest Litigation’, it was contended that by Government Order No. 3138, issued on 22nd November, 2006, sanction was accorded for construction of a bridge over Saryu River to connect Pithoragarh and Kapkot with Bageshwar town. It was stated in the writ petition that the proposal was to ease the pressure upon the existing bridge. It was stated that the said sanction was accorded after accepting the report of the Public Works Department, prepared by four senior officers thereof on 30th December, 2005. A copy of the said report was annexed as Annexure No. 2 to the writ petition, wherefrom, it appeared that location of three spots was considered for construction of the new bridge. One of those spots, it was indicated in the report, is situated about 200 meters from the existing old bridge. It was stated that for the bridge to be constructed at the said spot, no diversion is required. It was also stated, amongst others, that for constructing the bridge at the said spot, an old dilapidated public toilet is required to be removed. The said spot, it was stated, is by the side of a hospital. The report opined that construction of the new bridge at the said spot 2 would be most ideal and would incur a cost of ` 198 lacs. In the writ petition, it was contended that for constructing the new bridge at the said spot, Government has accorded sanction as far back as on 22nd November, 2006. But, apart from spending a sum of ` 0.36 lacs, no step has been taken to construct the new bridge for no just reason. Although the estimate was of ` 198 lacs, while the Government accorded sanction on 22nd November, 2006, it sanctioned a sum of ` 260 lacs for construction of the new bridge at the said spot. 2. In the counter affidavit, filed on behalf of respondent No. 3, it was stated that local residents of Kathayatbara and Jeetnagar offered severe resistance with regard to construction of the new bridge at the said spot. Nothing, however, was brought on record to substantiate the same. It was also contended that the hospital, too, raised objection. In support of the objection of the hospital, a letter of the District Hospital, Bageshwar, dated 29th January, 2009 was relied. Contents of the said letter, translated into English, would read as follows: “Office of Medical Superintendent District Hospital, Bageshwar No…. Dated: 29.1.2009 To, District Magistrate, Bageshwar. Subject: In respect of the bridge to be constructed near the District Hospital. Sir, It has come to my knowledge that a bridge is being constructed by the Public Works Department near water pump near the Women Hospital and, through the newly constructed bridge, a bypass route is proposed upto Kanda road, on which, possibility of movement of light and heavy vehicles is there. Here it is to inform that on the said route, after Women Hospital, District Hospital is there and trauma center and blood bank are under construction. Medical is a very important service. On the road, light vehicles keep on standing and, because the width of the road is very less, construction of the road from the bridge from here does not seem proper. Because heavy vehicles will move from here, important emergency services may get obstructed. Hence, instead of constructing the above bridge near the Women Hospital, it may be constructed at some other place. Faithfully, Medical Superintendent 3 District Hospital, Bageshwar.” 3. It was, then, contended in the counter affidavit that the District Magistrate, on 22nd February, 2009, convened a meeting, which was attended, amongst others, by local representatives and the shop-keepers, when it was agreed to shift the site of the new bridge by the side of the old bridge. The Minutes of the meeting, said to have been held on 22nd February, 2009, were annexed to the counter affidavit. Translation thereof, in English, would read as follows: “Minutes Today, on 22.02.2009, an important meeting took place under the chairmanship of Sri Ram Singh Koranga, Chairman, Zila Panchayat, in relation to construction of sanctioned 80 meter steel girder motor bridge on Saryu river near District Hospital in district Bageshwar, in which the following members were present: 1. Chairman, Zila Panchayat (Sri Ram Singh Koranga) 2. M.L.A., Legislative Constituency, Bageshwar (Sri Chandan Ram Das) 3. M.L.A., Legislative Constituency, Kanda (Sri Balwant Singh Bhoriyal) 4. Chairman, Nagar Palika, Bageshwar (Sri Subodh Lal Sah) 5. Pramukh, Kshetra Panchayat, Bageshwar (Sri Rajendra Singh Tangdia) 6. District Magistrate, Bageshwar (Sri D.S. Garbyal) 7. Executive Engineer, Provincial Division, P.W.D. Bageshwar (Sri Gulab Ram) 8. Executive Engineer, Construction Division, P.W.D. Kapkot (Sri P.C. Joshi) 9. Project Director, Bageshwar (Sri R.S. Rawat) 10. Block Development Officer (Sri Mahesh Chandra) etc., in presence whereof, an important meeting has been concluded in the Auditorium of Development Block, Bageshwar, and, unanimously, it was decided that the new motor bridge be got constructed, on the lines of Gomti bridge, near the earlier constructed motor bridge on Saryu river for Bageshwar-Berinaag motor road, for which purpose, proposal has been prepared by the Public Works Department, Block Bageshwar. It was also decided that the construction of the shops, to be affected by the motor bridge and the approach road thereof, taking it away from the route, shall be done within the premises of office of the Zila Panchayat, in which, on the ground floor, godown, Zila Panchayat Office, and on the first floor, shops, shall be constructed, for which, proposal shall be made in District Plan 2009-10. Preliminary assessment, in accordance with the rates of Public Works Department, for construction of shops / building: for ground floor ` 22 lacs approximately; for first floor ` 20 lacs approximately; and disturbance charge ` 20 lacs; and compensation for affected land for the purpose of 4 proposed construction work ` 15 lacs approximately, totaling approximately ` 77 lacs, provision whereof will be made in 2009-10. Hence, by obtaining a No Objection Certificate from Zila Panchayat, Bageshwar, steps be taken by the Public Works Department, Bageshwar, to start the work for construction of the bridge, by completing all necessary formalities after spot selection without any delay. M.L.A., Legislative Constituency, Bageshwar (Sri Chandan Ram Das) M.L.A., Legislative Constituency, Kanda (Sri Balwant Singh Bhoriyal) Pramukh, Kshetra Panchayat Bageshwar (Sri Rajendra Singh Tangdia) Chairman, Nagar Palika Bageshwar (Sri Subodh Lal Sah) Executive Engineer (P.D.) P.W.D., Bageshwar (Sri Gulab Ram) Executive Engineer (P.D.), P.W.D., Kapkot, (Sri P.C. Joshi) Project Director, Bageshwar (Sri R.S. Rawat) Block Development Officer (Dr. Mahesh Kumar) District Magistrate, Bageshwar (Sri D.S. Garbyal) Chairman, Zila Panchayat (Sri Ram Singh Koranga) 4. The said Minutes, though mentioned the word “etc.”, did not specifically mention presence at the meeting of any local public representative or shop- keeper. The Minutes also do not suggest that the meeting was convened to consider resistance by local residents of Kathayatbara and Jeetnagar, nor did they indicate that the meeting considered the aforementioned letter of the hospital. The Minutes, at the same time, do not indicate that the participants thereof were considering, at the meeting, a better spot for construction of the new bridge. The Minutes indicate that the persons, attending the said meeting, empowered themselves to spend a sum of ` 77 lacs approximately in connection with the matters mentioned in the Minutes. The Minutes, though indicated that the provision for spending ` 77 lacs approximately would be made in the year 2009-2010, but did not indicate from where the fund will come. Although, in the said letter of the hospital dated 29th January, 2009, it was not indicated, but, in the said counter affidavit, it was contended that if the new bridge is constructed near the hospital, the same will involve demolition of blood bank building, mortuary etc. of the hospital. At the same time, though in the report dated 30th December, 2005, it was indicated that construction of the new bridge near the hospital would involve removal of old dilapidated public toilet, it was stated in the counter affidavit that construction of the new bridge at the said spot will involve demolition of private building and the premises of Radha Krishna Temple situated in the vicinity. It was stated that District Panchayat has given ‘No Objection’ for construction of the new bridge near the old existing one and that the Public Works Department has already 5 prepared and sent the proposal and estimate to the State Government for construction of the new bridge by the side of the existing bridge, which is under consideration of the Government. 5. On 13th August, 2010, it was noted by us that the counter affidavit, as filed, fairly indicates that there is no impediment in starting the work of bridge. On that date, learned Standing Counsel for the respondents also assured us that with the consent of the local people, it has been decided to construct the new bridge by the side of the existing bridge. Taking note thereof, we adjourned the matter for eight weeks with an expectation that the work of construction of the new bridge will commence and some progress would be made. Petitioners, by filing an application, sought modification of the said order dated 13th August, 2010, wherein, amongst others, they contended that from the information received by the petitioners under Right to Information Act, vide letter dated 8th October, 2009, which letter has been annexed to the writ petition, it would be evident that the decision to construct the new bridge near the hospital was taken keeping in view the public transportation system and in the interest of public and, accordingly, decision to construct the said bridge at any other place is unjust. Petitioners also filed a rejoinder affidavit, where they contended that demolitions as suggested in the counter affidavit are untrue and unsupported. 6. At the hearing of the writ petition, therefore, the dispute required solution in public interest, was whether the new bridge should be constructed at the spot originally selected or at the new spot selected later on? Petitioners contended that there was and is no just reason to shift the construction of the new bridge from the spot already chosen to a new spot near the existing bridge. They submitted that the decision to shift construction of the new bridge was taken to sub-serve private interest of those, who attended the said meeting held on 22nd February, 2009. Hence, the Court should direct immediate commencement of the work of construction of the new bridge at the spot as was originally decided, i.e. near the hospital. We found force in the contention, but, at the same time, in view of the pleading that people of the locality are averse to construction of the new bridge at the spot originally 6 chosen, i.e. near the hospital, we, by an order dated 10th November, 2010, directed the District Magistrate to convene a meeting of the local people by publishing a newspaper notice fixing the date, time and venue of the meeting for the purpose of obtaining the views of the local people as to where the new bridge will be constructed, i.e., whether the same should be constructed by the side of the existing bridge or near the hospital. District Magistrate was directed to obtain signatures of each member of the public, participating in the said meeting, in an attendance register against the name of each such person. The decision at the said meeting was directed to be taken on the basis of raising of hands by the people attending the meeting. We also appointed the President of the Bar Association of the district court at Bageshwar as Observer with direction upon him to observe and report whether the meeting has been convened by the District Magistrate in the manner as has been directed by us. We also directed the District Magistrate to report to this Court the outcome of the decision of the local people and also directed the Observer to file his report. 7. Accordingly, District Magistrate issued a public notice in the newspaper ‘Dainik Jagran’ on 17th November, 2010, wherein it was indicated that the meeting of the local people for the above purpose will be held at 11:00 a.m. of 19th November, 2010. On 19th November, 2010, District Magistrate published another notice in the newspaper ‘Dainik Jagran’ indicating that the said meeting, instead of being held on 19th November, 2010, will be held at 02:00 p.m. on 23rd November, 2010. As reported, the said meeting was attended by 168 members of the public. With the report, District Magistrate had filed the attendance register containing inter alia the names and signatures of those 168 persons, who attended the said meeting. In his report, the District Magistrate reported, amongst others, translated into English, as follows: “At the end, talks were held by the District Magistrate, Bageshwar, after discussing with the Observer appointed by the Hon’ble High Court. First, the general public was asked to express their opinion by raising hands in favour of the construction of the new bridge over Saryu river by the side of already existing bridge (in lines with the bridge constructed on Gomti river). In response thereto, nobody of the general public, present there, raised his hands. Thereafter, some people stated that the position is not clear and asked for further clarification. Again, it was stated that those people, who do not want the new bridge over Saryu 7 river by the side of already existing bridge (in lines with Gomti river), they may raise their hands. To this, 75 persons raised hands. During this, many women / men went away. Thereafter, it was asked to raise hands in favour of construction of the new bridge at the sanctioned spot, i.e. near the hospital. To this, majority of the people, present there, raised hands in favour of construction of the new bridge at the sanctioned spot, i.e. near the hospital. In this way, it was decided by the District Magistrate, Bageshwar, with the consent of the Observer appointed by the Hon’ble High Court, that the majority of the people, present there, are in favour of construction of the new bridge near the hospital.” 8. The said report was perused by us on 15th December, 2010 and, noting that each and every person, present in the meeting, wanted the new bridge to be constructed at its original site near the hospital, we directed construction of the new bridge at the original site, i.e. near the hospital, and to commence construction work as quickly as possible, but not later than three months from the date of service of a copy of the said order upon respondent No. 3. The writ petition was, accordingly, disposed of. 9. Subsequent thereto, on 6th January, 2011, Nagar Palika, Bageshwar, through its Executive Officer; Chairman, Nagar Palika, Bageshwar; and Smt. Nirmala Dafoti filed a Review Application, seeking review of our order dated 15th December, 2010. In the Review Application, it was stated that if the new bridge is constructed by the side of the old bridge, it will cover a span of 54 meters instead of 80 meters, as is the span of the new bridge at the spot originally chosen. It was stated that, accordingly, cost of construction would be reduced. It was also stated that the hospital will suffer due to petrol, diesel and noise pollution of vehicles. It was stated that the bridge is not suitable for vehicular traffic. It was also stated that a new 15 meters bridge over Bhagirathi rivulet would be necessary putting further financial burden on the State and consequent dislocation of medical shop-keepers by the side of the said bridge. It was contended that Sinaula, which collects water conserved by oak trees, is used for drinking purpose and the same will be lost if construction of the new bridge is made at the spot originally chosen. It was also contended that blood bank, trauma center and private wards of the hospital would be required to be demolished and land and house of village, like that of applicant 8 No. 3 and others, will be required to be acquired and demolished, if the new bridge is constructed at the spot originally chosen. It was contended that the approach road of the proposed bridge at the original spot is not wide enough for traffic from both sides simultaneously. It was contended that, accordingly, there will be congestion of traffic. It was contended that when the proposal to construct was originally made, site adjacent to the old bridge had been ignored. It was contended that a Technical Committee, on 13th December, 2009, considered the relevant advantages and disadvantages of constructing the new bridge at the original spot and by the side of the existing old bridge and found in favour of constructing by the side of the existing old bridge. The relevant part of the report of the Technical Committee, translated into English, is as follows: Sr. No. Particulars Spot No. 1 Spot No. 2 1. Location This spot is situated in the middle of Bageshwar city. Spot No. 2 is selected near Women Hospital. 2. Span Span of bridge is 54 meters. Span of bridge is 80 meters. 3. Foundation On the right side, there is a mountain ridge and on the left side, there is no mountain ridge. There is no mountain ridge on either side. 4. Base of bridge From minimum water level is 9 meter and from maximum water level is 6 meter. From minimum water level is 5.80 meter and from maximum water level is 3 meter. 5. Approach road On left side, 100 meter is necessary to be constructed. Not necessary to construct approach road. 6. Compensation Compensation for land belonging to Zila Panchayat and shops on the left side is to be given. On the left side, one old dilapidated public toilet is required to be removed. 7. Diversion Not required. Not required. 8. Safety work Safety work is required to be done on both sides. Safety work is required to be done. 9. Cost of Bridge A Class (1½ lane) Cost of Bridge: ` 189 lacs Approach Road: ` 15 lacs Safety Work: ` 36 lacs Total: ` 240 lacs Compensation: ` 72 lacs Cost of Bridge: ` 280 lacs Safety work: ` 15 lacs Total: ` 295 lacs Compensation: ` 6 lacs + estimate still left, which will be in crores. 10. The words, “+ estimate still left, which will be in crores”, mentioned under Spot No. 2 against Serial No. 9, are in handwriting and not countersigned by any of the signatories to the said report, when remaining part of the report is typewritten. It was stated that construction of the new bridge at the place adjacent to old bridge involved payment of compensation of ` 28 lacs 9 and that such compensation has been paid. The letter and cheque, annexed in support of the said contention, suggests that Public Works Department has paid Rs. 28.02 lacs to the Zila Panchayat, Bageshwar. It was stated that the writ petitioners are tenants of Zila Panchayat, whose shops will be demolished for construction of the new bridge by the side of the old bridge and that, though they will be allotted new shops at the proposed site, but they want further compensation and, accordingly, filed the writ petition to advance their personal interest. It was also stated that no one was present in the meeting hall on 23rd November, 2010 and, outside, there was a large agitated crowd, who were proposing to construct the new bridge at the original spot. It was stated that the crowd was out of control and the authorities were trying to pacify the crowd and that no meeting was held. It was, thereupon, insinuated that, thereafter, some kind of meeting was held by the District Magistrate and that only 75 people were in favour of the bridge being constructed at the original spot. It was stated that the report of the District Magistrate is contradictory and should not have been accepted by the Court. With the Review Application, report of the District Magistrate was annexed. In that, by hand, the following words, translated into English, were added after the words “During this, many women / men went away” as set out above: “whereas present 168 persons, desirous 93 people” 11. It was stated that on 15th November, 2010, a meeting of the Nagar Palika was held when it was decided to approach this Court. It was stated that, in the meantime, tender for construction of the bridge by the side of the old bridge was invited, which was to be opened on 22nd September, 2010 and, in response to the tender submitted by one Sri Anand Singh Mehta on 7th October, 2010, Public Works Department, on 3rd November, 2010, awarded the contract in his favour for Rs. 1,85,28,407.47/-. 12. Inasmuch as, insertion of those words, mentioned above, by hand in the report of the District Magistrate, made two reports of the District Magistrate, we called upon the District Magistrate to explain how there are two reports. The District Magistrate reported that the handwritten portion of his report, as was annexed to the Review Application, is not by him. Review applicants, 10 thereupon, sought for amendment of the Review Application principally to delete that part of the report of the District Magistrate, which was allowed by this Court. 13. The question is, in the circumstances as above, can there be any scope of review of the order passed by us on 15th December, 2010? 14. As appears from the application for review, applicants were well aware of the pendency of the present Public Interest Litigation and that, in relation thereto, this Court has directed holding of a public meeting to ascertain whether the new bridge should be constructed at the original spot near the hospital or at the alternative site by the side of the existing old bridge and that such public meeting was held on 23rd November, 2010 and that, in regard to the said meeting, a report has been filed by the District Magistrate to this Court, which, according to the review applicants, was contrary. Despite that, review applicants did not take any step to approach this Court before 15th December, 2010, although the Nagar Palika, represented by applicants Nos. 1 & 2, at a meeting held on 15th November, 2010, decided to approach this Court. If, at the instance of review applicant Nos. 1 & 2, in the background as above, Review Application is allowed, the same would tantamount to do something, which is not permissible in law. In the Review Application, there is not a single whisper as to why the review applicant No. 3 did not approach this Court before 15th December, 2010. The Review Application is, accordingly, not maintainable. 15. Review applicants are contending that public interest is in favour of construction of the new bridge by the side of the old bridge and, for that matter, are relying on assessments by the Public Works Department, as depicted in the Technical Committee’s report referred to above. Though the Technical Committee’s report was made on 13th December, 2009 and though the Public Works Department filed its counter affidavit to the writ petition on 27th April, 2010, it did not bring on record the said Technical Committee’s report in its counter affidavit. Public Works Department even filed a supplementary affidavit, where also, there was not a whisper about the