Dismissed

Raju Nandi and 26 Ors. v. the Union of India and 4 Ors.

Gauhati HC21 Nov 2019WP(C)/2940/2019

Case brief

AI extract

What is this about?

A writ petition challenging the Railway Department's decision to shift the construction path of a proposed overbridge at Hojai. The petitioners argued the new location adversely affects the commercial hub. The Court dismissed the petition, noting the change was approved by the Railway Board and no personal mala fide was alleged.

What did the court decide?

The writ petition praying for mandamus to review the decision to construct the overbridge at a different site was dismissed.

Raju Nandi and 26 Ors. Vs the Union of India and 4… — Writ and Judicial Review | Gauhati HC (2019)

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GAHC010007442018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2940/2019

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1:RAJU NANDI AND 26 ORS. S/O. SRI RAMPADA NANDI, R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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2: BISWAJIT GHOSH

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S/O. SRI BIJOY GHOSH R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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3: MD. NAUSHAD S/O. M.D. ALI R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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4: RANJAN SHIL S/O. LT. MANORANJAN SHIL R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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5: RUPAK SAHA

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S/O. SRI MANOJ KR. SAHA R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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6: DILIP GHOSH S/O. LT. ANIL CH. GHOSH R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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7: BISWAJIT DUTTA

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S/O. LT. MANORANJAN DUTTA R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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8: RAJKISHOR THAKUR

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S/O. LT. KANAIYA THAKUR R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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9: UTTAM DEBROY

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S/O. SRI KHIROD DEBROY R/O. NEW MARKET HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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10: BUPPA DUTTA S/O. LT. NITU DUTTA R/O. STATION ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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11: CHITTA GHOSH

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S/O. LT. ASHANANDA GHOSH R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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12: CHANDAN BHAWAL

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S/O. LT. JITENDRA BHAWAL R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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13: MOHAN SHA

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S/O. SRI SIBALOK SHA R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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14: NIRANJAN GHOSH

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S/O. LT. ASHANANDA GHOSH R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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15: ARUN DAS

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S/O. LT. ABANI RANJAN DAS R/O. STATION ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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16: RAHUL SAHA

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S/O. SRI NIMAI SAHA R/O. STATION ROAD NATUN BAZAR HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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17: DHAN RAJ RANKA

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S/O. LT. MOHONLAL RANKA R/O. NATUN BAZAR HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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18: RAMA KANTA SINGH

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S/O. SRI KRISHNA KR. SINGH R/O. NATUN BAZAR WARD NO.-4 HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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19: GURJIT SINGH

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S/O. SRI GURDIP SINGH R/O. NATUN BAZAR WARD NO.-4 HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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20: KAMAKHYA SHA

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S/O. SRI UMA SHA R/O. NATUN BAZAR WARD NO.-4 HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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21: SAMBHU DAS

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S/O. LT. MANASA DAS R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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22: DIBAKAR SAHA

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S/O. SRI BROJA GOPAL SAHA R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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23: MAHESH KUMAR MOR S/O. LT. SATNARAYAN MOR R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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24: SRIPAL SHARMA

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S/O. LT. GIRILAL SHARMA R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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25: BIJU DUTTA

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S/O. SRI RANJIT DUTTA R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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26: SUJIT DAS S/O. LT. ABANI DAS R/O. STATION ROAD NATUN BAZAR HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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27: BHUPAL SEAL S/O. SRI SUBUDH SEAL R/O. MAIN ROAD HOJAI P.O./P.S. HOJAI DIST. HOJAI ASSAM PIN-782435.

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VERSUS

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1:THE UNION OF INDIA REP. BY THE SECRETARY TO THE GOVT. OF INDIA RAILWAY DEPTT. NEW DELHI-110001.

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2:THE CHIEF ENGINEER

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N.F. RAILWAY MALIGAON GUWAHATI ASSAM-781011.

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3:THE GENERAL MANAGER

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N.R. RAILWAY MALIGAON GUWAHATI ASSAM-781011.

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4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PUBLIC WORKS DEPTT. (PWD) DISPUR GUWAHATI-06.

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5:THE DY. COMMISSIONER HOJAI DIST. HOJAI ASSAM.

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For the petitioners : Mrs. N. Saikia, Advocate.

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For the respondents : Mr. A. Dasgupta, Senior Standing Counsel, Railways.

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Mr. B. Sharma, Standing Counsel, Railways. Mr. T.C. Chutia, Additional Senior Government Advocate, Assam.

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- B E F O R E -

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HON’BLE THE CHIEF JUSTICE MR. AJAI LAMBA HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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ORDER

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Date : 21-11-2019 (Ajai Lamba, C.J.)

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Shri Raju Nandi and 26 other petitioners have preferred this writ petition primarily directed against Union of India, Ministry of Railways with the plea that a writ in the nature of mandamus be issued directing the Railways to review the decision of constructing Railway overbridge at Hojai Main Road, replacing the original site at Railway Level Crossing Gate No.IGIN-HII-ST-40; Nilbagan Hojai Tumpreng Road, which has already been approved by Ministry of DoNER vide letter dated 18.09.2017.

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The order dated 03.06.2019 rendered by this Court reads as under:-

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“Heard Mrs. N. Saikia, learned counsel for the petitioners. Also heard Mr. A Dasgupta, learned senior counsel appearing for the respondent Railways.

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In respect of the very same grievance which is articulated in this petition, this Court had entertained a Public Interest Litigation which is registered as PIL 2/2018 and the same has also been listed today. In PIL 2/2018, an order is passed today to list the same on 28.6.2019in order to enable Mr. Dasgupta to file an affidavit on behalf of respondent No.2 therein.

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In that view of the matter, we are of the opinion that this case should also be considered along with PIL 2/2018.List accordingly on 28.6.2019.”

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From the above, it is evident that the issue raised by virtue of the petition had already been raised in Public Interest Litigation vide PIL No.2/2018.

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PIL No.2/2018 has been dismissed by this Court by order dated 21.11.2019 in the following terms:-

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“Shri Dinesh Chandra Paul and 13 others have preferred this Public Interest Litigation, essentially against the Union of India, Railway Department and other related functionaries questioning the path of overbridge being constructed by the Railway Authorities.

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It has been pleaded that the Railway Authorities are taking steps for

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constructing Railway overbridge at Hojai Main Road (J.K. Kedia Road), which is a very busy and commercial hub and also lifeline of Hojai without implementing the project for construction of Railway flyover bridge at Natun Bazar (replacing Railway Level Crossing Gate No.JGJN-HJI, ST-40), Nilbagan, Hojai, which was earlier approved.

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2. It appears that a bridge was to be constructed over path stated as ST-40. Subsequently, however, the respondents in their wisdom changed the path to the proposed path.

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3. Gist of the issue has been captured by this Court in its order dated 30.01.2019 passed while dealing with I.A. (Civil) No.3314/2018. The order reads as under:-

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‘Heard Mr. SS Dey, learned senior counsel assisted by Ms. S Seal and Ms. S Kanungoe, learned counsel for the petitioners. Also heard Mr. B Sharma, learned Standing Counsel, NF Railway for respondent Nos. 1, 2, 6 and 8.

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Though we have elaborately heard the learned counsel for the petitioners and the learned counsel representing respondent Nos. 1,2,6 and 8 and, in that light, we have taken note the initial approval through the communication dated 18.9.2013 specifically earmarking the amount to the Railway Level Crossing Gate to be replaced by Railway Overbridge at Natun Bazar with specific reference to the spot as ‘ST-40’ Nilbagan Hojai Tumpreng Road at Hojai, Nagaon, the grievance of the petitioners is that the change effected from the said location is without approval from the concerned Ministry.

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Learned counsel for respondent Nos. 1,2,6 and 8 in reply to the same has contended that the spot has been identified without appropriate consideration being made at the first instance and the approval as granted was not by the Ministry concerned, but by the ‘DONER’ which does not provide the funds. In that light, it is sought to be contended that even in the revised estimate for conventional doubling of existing BG line from Hojai to Lumding, a higher amount has been sanctioned by the Railways and, therefore, in that circumstance, when it was found that feasibility at ST-40 for an overbridge cannot be considered further and as acquisition of land is also involved and the Public Works Department has been taken into confidence in the process, the

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proper course at this point is to secure appropriate consideration to be made by respondent No.2 in this regard.

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We are also conscious that a public work of the present nature should not be lightly interfered by this Court.

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In that view, learned counsel for respondent Nos. 1, 2, 6 and 8 to secure instructions from respondent No.2 in that regard and an appropriate affidavit be filed by an authorized officer on behalf of respondent No.2. In order to file such affidavit, respondent No.2 or such delegated officer with authority shall look into the grievance as put forth in this petition with regard to change of location without appropriate approval and in that regard, shall make a sworn statement as to whether the Railway Board is in agreement with the change that has been effected.

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The affidavit be filed in two weeks. A copy of this order be made available to the learned counsel for respondent Nos. 1, 2, 6 and 8.’

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4. In deference to above extracted order, affidavit dated 18.07.2019 has been filed with the accompanying documents. The pleadings in the affidavit and the accompanying documents make it clear that the Chairman of Railway Board is in agreement with the change that has been effected on the path of the bridge.

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We have gone through the pleadings in affidavit dated 18.07.2019 (supra). We have also gone through document dated 10.07.2019 authored by Chairman, Railway Board and ex-officio Principal Secretary, Government of India, Ministry of Railways, namely, Shri Vinod Kumar Yadav. So far as authorisation is concerned, we are satisfied.

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5. So far as public interest in the path of the bridge is concerned, we have referred to in detail the detailed plan of the earlier proposed bridge (ST-40) and the bridge being constructed presently, with the assistance of learned counsel for the respondent Railways. We find that the starting point of the bridge and the ending point of the bridge remains the same, with slight variation. The only difference appears to be that the bridge being constructed is going over a commercial hub.

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6. We have also taken into account the fact that the construction work over the bridge has already started. Photographs in evidence to that fact are available on record, which established that third party interests have already been created.

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7. The main cause of concern of the petitioners appears to be that the bridge under construction would be going over congested area, including over market place, Railway Station, Hospitals, etc. So much so learned counsel for the petitioners has pointed out that certain persons having business interest in the area over which the bridge would be constructed have preferred WP(C) No.2940/2019 (Raju Nandi & 26 Ors. -Vs- The Union of India & 4 Ors.). It has been pleaded that the business of the said persons would be adversely affected.

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8. Although allegations of malafide have been made, however, while going through the petition, we do not find that any allegation of personal malafide has been made against any officer or official.

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9. Be that as it may, considering the totality of facts and circumstances of the case, we find no reason to interfere in this Public Interest Litigation. Ordinarily, the Writ Court will not substitute its own opinion with the opinion of the Railway Authorities or other State functionaries, who have proposed to construct an overbridge which would be going over the Railway Station also. We have also referred to a feasibility report dated 21.07.2017 submitted by the Office of Assistant Executive Engineer, PWD, Odali State Road Sub-Division, District- Hojai. The said authority also agrees with the change in the path of the bridge.

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10. The Writ Court will not have the relevant inputs in regard to feasibility of construction of an overbridge. There are many issues involved in such cases, including the issue of acquisition of land.

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11. Considering the various facts and circumstances of the case, we find no merit in the petition and, therefore, the same is hereby dismissed.”

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We find no ground to interfere, for the reasons given in the above extracted order. With the above observations, the writ petition stands dismissed.

JUDGE

CHIEF JUSTICE

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Comparing Assistant

Raju Nandi and 26 Ors. v. the Union of India and 4 Ors.

Case brief

What is this about?

What did the court decide?

Raju Nandi and 26 Ors. v. the Union of India and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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