HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.8673 of 2011 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Manorath Rout S/o. Late Dasaratha Rout, Village: Marthapur, P.O. Sribantapur, P.S. Jajpur Road, Dist: Jajpur and others … Petitioners -Versus- The Executive Engineer, Jaraka Irrigation Division, At/P.O. Jaraka, Dist: Jajpur and others … Opp. Parties For Petitioners : M/s. K.K. Bhuyan, N.K. Mishra & A.K. Patra For Opp. Parties : Advocate General (For O.P. Nos.1 and 2) Mr. Bijan Ray, Sr. Advocate M/s. C. Choudhury, B. Mohanty, S. Mohanty & B. Moharana (For O.P. No.3) M/s. A.K. Parija, Sr. Advocate S.P. Sarangi, B.C. Mohanty, P.P. Mohanty, P.K. Dash & D.K. Dash (For O.P. No.4) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 16.12.2011 B.N. Mahapatra, J. This writ petition has been filed in the nature of public interest litigation with a prayer for quashing the order dated 24.03.2011 (Annexure-11) passed by opposite party No.2-Collector & District Magistrate, Jajpur. By the impugned order, the Collector, Jajpur keeping in view the public interest, i.e., completion of the project “Restoration of Marthapur Gherry” before onset of monsoon, construction of industrial units, i.e., completion of intake wells and safety of the villagers/petitioners, has issued some directions to be complied with by opposite party No.1-Executive Engineer, Jaraka Irrigation Division, At/P.O. Jaraka, Dist: Jajpur (for short, “Executive Engineer”), M/s. VISA Steel Ltd. (for short, “VISA”) and M/s. TATA Steel Ltd. (for short, “TATA”) and the I.I.C., Jajpur Road Police Station. The further prayer of the petitioners is for a direction to opposite party Nos.1 and 2 to stop plying of heavy vehicles on the Kharasrota River Embankment from village Chakua to Marthapur and to take appropriate legal action under Section 3 of the Prevention of Damage to Public Property Act, 1984 (for short, ‘Act, 1984’) against the heavy vehicles running on the river embankment in question. 2. Petitioners are villagers/inhabitants of village Kendudipa, Damodarpur, Jagadiha, Chakua, Jalaka, Khapuriapada, Baliposi and Marchapur. Their case is that the impugned order dated 24.03.2011 (Annexure-11) passed by opposite party No.2-Collector & District Magistrate, Jajpur (for short, “Collector”) is contrary to the order dated 13.01.2011 of this Court passed in W.P.(C) No.119 of 2011 as well as 2 Section 3 of the Act, 1984 and also contrary to the report dated 09.02.2011 (Annexure-3) submitted by the Executive Engineer. The said order of the Collector allowing private opposite party Nos.3 and 4 for transportation of materials by heavy vehicles from 7 P.M. to 7 A.M. on the road/embankment in question is completely against the public interest as the said embankment is having Class-B loading capacity and constructed for protection of neighbouring villagers from high flood water of River Kharasrota. The Collector is not justified in directing industrialists to demolish three Barricades, which were constructed by the Jaraka Irrigation Division to stop running of heavy vehicles and to protect the nature and character of the river embankment. Earlier some of the villagers filed W.P. (C) No.119 of 2011 wherein this Court by order dated 13.01.2011 directed the Collector, Jajpur to dispose of the grievance of the petitioners dated 16.12.2010 strictly in accordance with law. Pursuant to the said order of this Court, the Collector directed the Executive Engineer to file a detailed report on the petitioners’ allegation dated 16.12.2010. The Executive Engineer vide his report dated 09.02.2011 intimated that the flood embankment of River Kharasrota was being used by M/s. VISA Steel and M/s. TATA Steel for transportation of materials to their plants by heavy vehicles without any knowledge of the Department. No allegation was received by the Executive Engineer earlier from any of the villagers or from any source. On receipt of representation from villagers of Khapuripada on 05.01.2011, 3 nos. of Barricades/Check posts have already been 3 constructed by Jaraka Irrigation Division at Chakua, Khapuriapada and Marthapur and plying of heavy vehicles has been totally stopped w.e.f. 25.01.2011. Petitioners filed their objections against the said report of the Executive Engineer before the Collector stating therein that TATA in connivance with some anti-socials has demolished the Barricades constructed at Marthapur and the Check posts of Balliposi and Chakua are being misutilized by some sand suppliers who are illegally supplying sand from River Brahmani. In compliance of the notice of the Collector dated 28.01.2011, TATA Steel filed an affidavit stating that “the portion of road used by the Company is being constructed and maintained by them”. The petitioners opposed the said reply of TATA Steel on the ground that the same is not permissible under the prevailing law, which is contrary to Section 3 of the Act, 1984. 3. Mr. K.K. Bhuyan, learned counsel appearing for the petitioners submitted that pursuant to the direction of the Collector dated 10.02.2011, A.D.M., Kalinganagar conducted a field inquiry and categorically objected to allow plying of heavy vehicles on the said river embankment and suggested for direction to the Executive Engineer to permit them to ply heavy vehicles only after apportioning the cost of repair and widening of the embankment road between M/s Visa Steel and M/s Tata Steel which have strongly been objected to by the villagers by their objection dated 17.03.2011. The Collector having hand in glove with the industrialists, vide order dated 24.03.2011, directed the Executive Engineer to allow plying the heavy 4 vehicles on the said river embankment between 7 P.M. to 7 A.M. The direction given by the Collector to the Executive Engineer for running heavy vehicles on the river embankment is without authority as because the said river embankment is under the supervision and control of the Irrigation Department and not under the Collector. The embankment in question is having Class-B loading capacity and is not meant for running of heavy vehicles; rather it meant for running of light vehicles by the Department for its protection and maintenance so also to protect the neighbouring villages from flood and natural calamities. The order of the Collector allowing running of heavy vehicles of TATA and VISA on the said river embankment is contrary to Section 3 of the P.D.P.P. Act, 1984 and the guidelines of Irrigation Department. The impugned order is illegal as the same is contrary to the report dated 09.02.2011 submitted by the Executive Engineer before the Collector. Since the private opposite parties have admitted their fault in their affidavit, the Collector is wrong in allowing them to ply heavy vehicles on the embankment in question. The order of the Collector dated 24.03.2011 is contrary to the findings of the A.D.M., Kalinganagar under Annexure-9. The action of the Collector is a threat to the safety of the embankment and is contrary to the Part-III and Part-IV of the Constitution and it is against the interest of the State. On receiving the order of the Collector, the villagers had convened a general public meeting wherein it has been decided to fight against the injustice caused by the Collector. Because of the illegal order passed by the Collector, the general 5 public would suffer irreparable loss. The Collector has committed error by not taking action against the private opposite parties under Section 3 of the Act, 1984 for running heavy vehicles on the road/embankment in question. Hence, it is a fit case for judicial interference. Concluding his argument, learned counsel for the petitioners prayed to allow the writ petition. 4. Mr. Ashok Mohanty, learned Advocate General appearing on behalf of opposite party No.2-Collector, Jajpur referring to affidavit dated 09.05.2011 submitted that in compliance of this Court’s order dated 13.01.2011 passed in W.P.(C) No.119 of 2011 directing the Collector to dispose of the representation dated 16.12.2010 filed by the petitioners strictly in accordance with law, opposite party No.2 passed the impugned order on 24.03.2011 after giving the petitioners due opportunity of being heard and taking the report of the Executive Engineer dated 22.02.2011 and the Additional District Magistrate, Keonjhar dated 03.03.2011 into consideration. According to the Executive Engineer, TATA and VISA are constructing two intake wells on the river bed of river Kharasrota. The embankment road of river Kharasrota named “Chakua, Marthapur Other Agricultural Embankment” (OEA) having a total length of 5.05 km with width varying from 3.1 M to 4.00 M having a blacktopped surface of 3.00 M wide is the one and only road leading to the sites of the intake wells of TATA and VISA under construction. There is no alternative road for transportation of construction materials to the sites of the intake wells of the said industrial units who are transporting construction materials 6 through the said embankment road. Besides, a project namely “Restoration to Marthapur Gherry” is under construction by Water Resources Department, for which construction materials are also transported to its work site through trucks and tractors on the said embankment road. The said project being project of public importance needs expeditious completion before onset of the monsoon. Since the number and frequency of plying of heavy vehicles have increased for transportation of construction materials to the aforesaid sites, on receipt of complaint from the local villagers regarding damage to the embankment road and occurrence of accident due to plying of heavy vehicles thereon, the Executive Engineer was directed to erect three numbers of barricades to restrict the movement of heavy vehicles. He has categorically stated that consequent upon erection of barricades, the departmental work namely, “Restoration to Marthapur Gherry” which needs completion before the onset of the monsoon has suffered badly so also the construction work of the intake wells of the private industrial units. 5. It was further submitted that the Government of Orissa has signed Memorandum of Understanding (MoU) with the erstwhile VISA Industries Ltd. at present M/s. VISA Steel Ltd. and M/s. TATA Steel Ltd. according to which, the Government of Orissa has to permit withdrawal of water from Brahmani and Kharasrota rivers respectively. Subsequently, the Director, Water Resources and Member Secretary Allocation Committee vide letter No.6541 dated 27.09.2010 have been pleased to accord 7 permission in favour of VISA for drawal of water from river Kharasrota. In the MoU, both the aforesaid industrial units have been allowed to build necessary infrastructure which include head works (intake wells)/pipe lines etc. Accordingly, the industrial units are constructing their head works (intake wells) on the lands purchased by them directly and having been permitted to draw water from river Kharasrota. The use of the road/embankment in question by the said industrial units is purely temporary and will cease upon completion of their head works and intake wells. The Collector has never directed the aforesaid industrial units to demolish the barricades constructed by the Executive Engineer. On the other hand, the Collector has directed the Executive Engineer to restrict plying of heavy vehicles by imposing reasonable restrictions to avoid possibility of accidents as apprehended by the villagers by erecting barricades. The Collector has also issued instruction to the Executive Engineer for strengthening the embankment and directed the industrial units to deposit money for the said purpose. Thus, the Collector has disposed of the grievance petition dated 16.12.2010 in accordance with law as well as taking the ground reality into consideration. 6. On a careful scrutiny of the speed post receipt reveals that one N.B. Bhuyan had sent a letter by speed post on 16.12.2010 to the Executive Officer, Jaraka and not to the Executive Engineer. Therefore, the stand taken by the Executive Engineer that he had not received any allegation regarding plying of vehicles on the embankment in question by the opposite party- 8 industrial units prior to 05.01.2011 is correct. There is no evidence on record to show that VISA has demolished the barricade/check post at any point of time constructed by the Executive Engineer. The said authority has constructed three barricades at different locations of the embankment in question to avoid serious law and order situation. The provision of Section 3 of the Act, 1984 is not attracted as the industrial units have not committed any mischief causing damage to the public property. The act of construction and maintenance of the embankment road by TATA cannot be termed as unauthorized, since they are maintaining the road with the knowledge of the Executive Engineer. Such action of TATA cannot be termed as mischief causing damage to public property as envisages under Section 3 of the Act, 1984. The Additional District Magistrate conducted field enquiry on 19.02.2011 as per the direction of the Collector dated 10.02.2011. Keeping in view the factual scenario of the case, the Additional District Magistrate has suggested for repairing and widening of the embankment road by the aforesaid two industrial units with due permission of the Executive Engineer and the industrial units were permitted for transportation of the materials to the work site of the intake wells as well as “Marthapur Gherry” after widening of the road. Keeping in view the fact that the embankment road is the only road for transportation of materials to the work site of the said industrial units, the Executive Engineer vide his letter No.919 dated 22.02.2011 addressed to the Collector, has also made suggestions. Therefore, it was submitted that there was no contradiction between the 9 suggestions made by the A.D.M., Kalinganagar and the Executive Engineer so far as widening of the road by the industrial units and giving them permission for use of the road is concerned. To avoid possibility of accident, the Collector vide the impugned order directed stoppage of plying heavy vehicles from 7 A.M. to 7 P.M. and has ordered for strengthening and widening of the flood protective embankment as a permanent solution by arranging funds from the said industrial units without putting burden to State Exchequer. Concluding his argument, learned Advocate General prayed for dismissal of the writ petition. 7. Mr.B.Ray, learned Senior Advocate appearing for opposite party No.3-VISA Steel Ltd. submitted that the petitioners have no cause of action to invoke the extra-ordinary jurisdiction of this Court. The grounds taken by the petitioners assailing the order of the Collector do not merit consideration. Collector being directed by this Court considered the statement made by each of the parties and passed orders in the interest of the State, which is of paramount consideration. The averments made in the writ petition assailing the Collector’s jurisdiction amounts to aspersion on this Court’s order dated 13.01.2011. Petitioners moved this Court to blackmail the opposite party-Companies so also the State. There is no other communication than the embankment road for transportation of construction materials to the work site of the opposite parties. Besides, a project, namely, “Restoration of Marthapur Gherry” is under progress of Water Resources Department. The embankment road is also used by State 10 for transportation of materials for construction of High Level Bridge over Ganda-nal connecting this road. The Collector has passed a lawful order pursuant to the direction of this Court in the greater interest of the people of the locality and the State. The road in question is an embankment road and provides only communicable road to the State and the Companies as well as the Irrigation Department. By virtue of the order of the State Government, opposite parties 3 and 4 are constructing intake wells in the bed of river Kharasrota and the said work has been undertaken by awarding the construction work to M/s Gammon India Pvt. Ltd. for transporting materials to the work site, which has not been impleaded as a party. The work undertaken by opposite parties 3 and 4 are temporary in nature and are required to be completed expeditiously. The Collector, in the interest of the State as well as the people of the locality, has directed for strengthening of the road at the cost of opposite parties 3 and 4. The Executive Engineer while preparing estimate stated that such work of improvement of the embankment road can be completed at an estimated cost of Rs.2.77 crores and opposite parties 3 and 4 shall bear the cost on 50:50 basis. 8. Mr.Ashok Parija, learned Senior Advocate appearing for opposite party No.4-TATA Steel submitted that pursuant to the order dated 13.01.2011 passed in W.P.(C) No.119 of 2011, the Collector disposed of the representation dated 16.12.2010 of the petitioners. Petitioner-villagers, in their representation dated 16.12.2010 made a request that they will be safe 11 if the Gheribandh from Chakua to Marthapur will be widened and maintained after stopping plying of heavy vehicles of TATA Steel and VISA Steel. Learned Collector, after conducting due enquiry and hearing the parties has passed the impugned order. The road used by opposite party- Companies serve the dual purpose, i.e., providing protection from flood as well as communication facility. Pursuant to the direction of the Collector, Executive Engineer issued letter dated 11.04.2011 to the present opposite party directing to deposit an amount of Rs.1,38,72,309/- towards 50% of the cost of the work, i.e., “Improvement of road on embankment from Chakua Marthapur OAE on Patia left from Chakua to Marthapur”. The opposite party No.4 in due compliance to the said directive has already deposited the said amount. Opposite Party No.4 uses the road in question for transportation of construction materials and machineries for about seven days in a month. 9. On the rival contentions raised by the parties, the only question that falls for consideration by this Court is as to whether the impugned order passed by the Collector pursuant to order dated 13.01.2011 of this Court passed in W.P.(C) No.119 of 2011 is just and proper in the facts and circumstance of the case. 10. Undisputed facts are that the road in question is a flood protection embankment road, namely, Chakua Marthapur (Other Agriculture Embankment Road) which starts from village Chakua and ends at village Marthapur. The total length of the said road is 5.05 kilometres 12 with width varying from 3.1 meter to 4 meter. The top surface of the embankment road is black topped. The said road serves as flood protection embankment and also day-to-day communication needs of the villagers. The road is not meant for plying of heavy vehicles. The opposite parties 3 and 4 are constructing intake wells in the bed of river Kharasrota to draw water from the river having got permission from Government of Orissa. Besides, project namely “Restoration of Marthapur Gherry” is under construction by the Water Resources Department for which construction materials are transported to the work site through trucks and tractors on the said embankment road. The said project has public importance. Both the private companies and the Water Resources Department are transporting materials to their respective work sites by using heavy vehicles on the road in question as no alternate road exists for the purpose. Once the intake wells are completed there will be absolutely no need for the private Companies to ply their heavy vehicles on the embankment road. The villagers during the enquiry conducted by the Additional District Magistrate, Jajpur demanded widening and strengthening of the said embankment road to withstand high flood and to facilitate smooth passage of vehicles to avert accident. The Collector, after hearing the concerned parties and keeping in view the paramount public interest disposed of the petition dated 16.12.2010 with the following directions:- “1. The Executive Engineer, Jaraka Irrigation Division is directed to strengthen the existing barricades erected by him and stop the plying of heavy vehicles on 13 the embankment from 7.00 AM to 7.0 PM. He should allow plying of heavy vehicles for transportation of construction materials to the aforementioned work sites between 7.00 PM and 7.00 AM to obviate the possibility of accidents. He should file FIR with the IIC, Jajpur Road Police Station in the event of anybody plying heavy vehicles on the embankment road without his written permission between 7.00 AM to 7.00 PM. He can give permission for plying of vehicles between 7.00 AM to 7.00 PM to meet any unforeseen contingency. 2. M/s VISA Steel Ltd. and M/s TATA Steel Ltd. are directed to strictly abide by the aforesaid directions. 3. The IIC, Jajpur Road Police Station is directed to take appropriate action on the FIR so filed by the Executive Engineer, Jaraka Irrigation Division. 4. The repairing and widening of the embankment road should be taken up forthwith. The expenditure on repairing and widening of the embankment road is to be borne by M/s VISA Steel Ltd. & M/s TATA Steel Ltd. on 50:50 basis. 5. The Executive Engineer, Jaraka Irrigation Division is directed to prepare required Plan and Estimate for the purpose and communicate to the Industrial units the quantum of fund to be placed by them. The aforesaid exercise should be completed by the Executive Engineer within a fortnight. 6. The M/s VISA Steel Ltd. and M/s TATA Steel ltd. are directed to place the fund with the Executive Engineer, Jaraka Irrigation Division within a week of the receipt of the intimation of placement of fund. The Executive Engineer, Jaraka Irrigation Division has to execute the project as a deposit work in accordance with the guidelines prescribed by the Water Resources Deptt. 7. The repairing and widening work of the embankment road should be implemented by the Executive Engineer, Jaraka Irrigation Division under his personal supervision and monitoring. 8. The completion of the project should be ensured before the onset of monsoon. 9. M/s. VISA Steel Ltd., M/s. TATA Steel Ltd. and Executive Engineer, Jaraka Irrigation Division and the IIC, Jajpur Road Police Station are directed to ensure strict compliance of the orders and send compliance report fortnightly to the undersigned. 14 Pronounced in the open Court to-day, i.e., on 24th day of March, 2011.” 11. Needless to say that safety of the villagers is of paramount consideration in the instant case. For that purpose, completion of “Marthapur Gheri” is also badly necessary. For completion of “Marthapur Gheri” heavy vehicles are to be permitted to carry construction materials to the work sites. For the purpose of carrying construction materials by heavy vehicles the road in question has to be widened and strengthen. It is also not in dispute that this is the only road through which the construction materials of opposite party-Companies are to be transported in heavy vehicles and the use of the said road in question by the opposite party- Companies is appears to be temporary and will cease upon completion of construction of their intake wells. In the circumstances, we are of the considered view that the directions as given by the Collector, Jajpur in the impugned order quoted above appears to be most appropriate and reasonable. The Collector, Jajpur has rightly directed repairing and widening of embankment road which should be taken up immediately and the expenses for expansion, repair and widening work of embankment road in question is to be borne by both the private parties on 50:50 basis. In the respective counter affidavits, opposite party-Companies, have agreed to bear the cost of repair and widening work of the embankment road in question. Therefore, we dispose of the writ petition with the direction that first of all the repairing and widening of the road in question be 15 completed and thereafter the heavy vehicles be allowed to play on that road. 12. In the result, the writ petition is disposed of with the above observations and directions. ……………………..... B.N.Mahapatra, J. V.Gopala Gowda, CJ I agree. …....……………….. Chief Justice 16 Orissa High Court, Cuttack Dated 16TH December, 2011/ssd/sss/skj