1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4839 of 2010 1. DEEPAK MUKHERJEE S/O LATE NIPENDRA NATH MUKHERJEE R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 2. SHYAM KISHORE SINGH S/O LATE BRAJ KISHORE NARAIN SINGH R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 3. SHAILENDRA KUMAR SINGH S/O SRI RAMANANDAN SINGH R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 4. THAKUR UDAY SHANKAR S/O SRI GIRISH KUMAR THAKUR R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 5. SANJAY KUMAR CHAUDHARY S/O SRI JANARDAN PRASAD CHAUDHARY R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 6. DURGAKANT JHA S/O LATE SILANATH JHA R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 7. MANOJ KUMAR GUPTA S/O SRI GANGA PRASAD SAHU R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 8. AASHESHWAR CHAUDAHRY S/O LATE RAMCHANDRA CHAUDHARY R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 9. MANNU SINGH S/O PROF. PARMANAND SINGH R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 10. KANCHAN KUMAR THAKUR S/O RAM MOHAN THAKUR R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 11. VIJAY BIHARI LAL S/O LATE BILAS BIHARI LAL R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 12. ANIL KUMAR S/O LATE RAMCHANDRA SAH R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 13. PRAMOD KUMAR S/O SRI RAM KUMAR JHA R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR 14. SANJAY KUMAR SINGH S/O LATE LAXMI NARAYAN SINGH R/O MOH KASHIPUR, WARD NO.12, P.O.+SAMASTIPUR … Petitioners Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT GOVT.OF BIHAR, PATNA 2 3. THE COLLECTOR SAMASTIPUR 4. THE CHAIRMAN NAGAR PARISHAD, SAMASTIPUR 5. THE EXECUTIVE OFFICER NAGAR PARISHAD, SAMASTIPUR 6. THE JUNIOR ENGINEER NAGAR PARISHAD, SAMASTIPUR … Respondents with CWJC No.14831 of 2009 1. JAWAHAR LAL S/O LATE SHIVA LAL R/O MOHALLA- MAULAGANJ, NEW ROAD, GAYA, DISTT.- GAYA 2. Teg Bahadur Singh, Foundation through its acting Chair person Smt. Shruti Singh, Advocate, 58, Bar Council Bhawan, Patna High Court, Patna 3. Pradhan Jwala Prasad, son of late Pradhan Suryavarti Prasad, resident of III, Patiliputra Colony, P.O. and P.S. Patliputra, town and District Patna … Petitioners Versus 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, OLD SECRETARIAT, PATNA 2. SECRETARY, DEPARTMENT OF NAGAR VIKAS & AWAS 3. JOINT SECRETARY OF NAGAR VIKAS AND AWAS 4. SECRETARY, DEPARTMENT OF PATH NIRMAN VIBHAG, GOVERNMENT OF BIHAR, PATNA 5. DISTRICT MAGISTRATE, GAYA 6. SUPERINTENDING ENGINEER, P.W.D., GAYA 7. EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, BARH PRAMANDAL-1, GAYA … Respondents. ----------- For the petitioners : Mr. Ashok Kumar Singh, Sr.Adv. Mrs. Manisha Singh, Mr. Yogendra Kumar Singh, Mr. Sunil Kumar Sharma, Advocates. For the State : Mr. P.K.Shahi, Advocate General Mr. Arvind Kumar Mr. P.K.Verma, AAGXI For responents No.4 & 5: Mr. Durganand Jha,Adv. ---------- 6. 19.4.2010 These two writ petitions, which have been 3 filed by the petitioners describing themselves as pro bono publico, basically relates to raising of the heights of the road as a result of which immense inconvenience is caused to the house owners in various cities and townships of the State of Bihar. This Court on earlier occasion on 26.3.2010 had recorded statement of Mr. P.K.Shahi, learned Advocate General, that the competent authorities of the State Government are deliberating to adopt either the Cold Recycling Method or the Hot Recycling Method. He was requested to come with an appropriate feed back and in this regard after due consultation with the experts. When the matter was taken on 8.4.2010 this Court proceeded to pass the following order: “ We have been apprised at the Bar that the height of the roads in the city of Patna are being increased, as a consequence of which the shops and the houses are really likely to be inundated with the rain water, even at the slightest rain. True it is, on an earlier occasion, we directed to adopt either Cold Recycling Method or Hot Recycling Method and we have been told by Mr. P.K.Shahi, learned Advocate General that a decision shall be taken on the same by the competent 4 authority after perusal of the report of the Engineer-in-Chief and his associates. But for the present what we have been told is quite shocking. In view of the aforesaid, let the Engineer- in-Chief of Road Construction Department and the Urban Development Department remain personally present at 2 P.M. on 19th April, 2010. The said authorities shall apprise this Court on what basis the contractors are doing this kind of work and on what basis the designs have been prepared by the authorities. We are absolutely conscious, we are not experts, but no expertise can be beyond what is visible to the eyes and totally counter to the common sense. We may hasten to add Mr. Pradhan Jawala Prasad, a retired Chief Engineer of Public Works Department of Bihar who has later been added as a petitioner, has submitted that there are ways to construct the roads with the present design, as a consequence of which the road height would not be increased. It is urged by him there are three layers of roads, namely, base, pavement and wearing and depending upon the damage caused to the road, the same has to be excavated and again rebuilt. But unfortunately the contractors are 5 not taking recourse to the same and adding to the wearing portion as a consequence of which the height of the roads have increased. We have only noted this aspect so that there can be a debate on this score on the next date. Call on date fixed. A free copy of the order may be given to learned counsel for the parties so that the needful is done in the meantime. In course of hearing Mr. Ram Dhayan Ram, Engineer-in-Chief, Road Construction Department and Mr. L.N.Das, Chief Engineer, Urban Development Department, are personally present. We have heard Mr. Ashok Kumar Singh, Mr. Yogendra Kumar Singh and Mr. Sunil Kumar Sharma, learned counsel for the petitioners and Mr. P.K.Shahi, learned Advocate General, Mr. Arbind Kumar and Mr. P.K.Verma, learned counsel for the State and Mr. Durganand Jha, learned counsel appearing on behalf of Samastipur Municipal Corporation. In course of hearing the Engineer-in-Chief of Road Construction Department and Chief Engineer of Urban Development Department submitted that they 6 would see to it that the house owners and inhabitants of the entire Urban Area of the State of Bihar are not affected because of construction of road. Learned counsel for the petitioners and the learned counsel for the State fairly agreed to the suggestions given by the experts who are present. We proceed to record the agreed suggestions which are to be carried out: (i) The roads that have been constructed till today by raising the heights shall not be disturbed but appropriate method shall be adopted by taking recourse to scientific and sophisticated device as a consequence of which the rain water does not enter into the houses of the house owners and inhabitants of the area and no inconvenience is caused. (ii) When we have said scientific and sophisticated method that would include adequate drainage system which would not cause any inconvenience by introduction of such a system. (iii) All the authorities, namely, Road Construction Department, Urban Development Department, Public Works Department and the Municipal Corporation shall work in harmony and 7 develop the pilot project by identifying such roads where either the Cold Recycling Method or Hot Recycling Method are to be introduced to ensure that the height of the roads are not increased. The said exercise of identification for incorporation in the pilot project in either of the modes shall be completed by 20th of June, 2010 positively. (iv) Till new methods are taken recourse to for the purpose of construction of the road appropriate and adequate measures shall be taken by constructing the roads in such a manner that the height of the roads are not increased ordinarily beyond the Plinth area and under no circumstances cause any inconvenience to the inhabitants of the locality. (v) Wherever the height of the road is increased as a result of which inhabitants are affected, they are at liberty to bring it to the notice of the Collector-cum-District Magistrate of the District who shall look into the same in quite promptitude and take appropriate action by bringing it to the notice of the experts. (vi) The notice inviting tender for repair, 8 maintenance and construction of work shall carry the stipulations which have been incorporated herein so that the contractors who are assigned the work do not behave in their own manner creating inconvenience and disturb the life pattern of the citizens by increasing the height of the roads. (vii) Any contractor, who would deviate from the stipulations, shall be visited with the order of rescission of the contract and face such other penal consequence which shall be provided in the contract. We may hasten to add, the aforesaid terms and conditions have been recorded on the concession given by the learned Advocate General, Engineer-in- Chief of Road Construction Department and the Chief Engineer of Urban Development Department and the learned counsel appearing for the petitioners. Before we part with the case we must record our appreciation for the assistance rendered by the intervener Late Pradhan Jawala Prasad, a retired Chief Engineer, and the same is reflectable from the order dated 16.12.2009 passed in C.W.J.C.No. 14831/2009 as well as the order dated 8.4.2010 passed in C.W.J.C.No. 9 4839/2010. Both the writ petitions are, accordingly, disposed of. There shall be no order as to costs. Free copies of the order be handed over to all concerned. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/