SHISHIR KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This case demonstrates a unique problem under the Pradhan Mantri Gramin Sarak Yogna (P.M.G.S.Y.). A road was to be constructed at Mauza Madhopur under Block and P.O. Mohanpur, P.S. Patory and at Mauza Adalpur under Block, P.O. and P.S. Patory in the district of Samastipur. The two Petitioners filed the present writ application alleging that the State and State machineries are encroaching upon their fertile agricultural land for constructing the said road. They are damaging the land without any compensation. It is pointed by them that under the Pradhan Mantri Gramin Sarak Yojna (P.M.G.S.Y.) which is a programme of Government of India the construction of the road has to be taken up by the nodal agency after due consultation with the Gram Panchayat/Panchayat Samiti which is a Local Self Government. This was not done. The second is that in case the road is to be made by acquiring land, the lands have to be acquired by way of voluntary donation, as no money is provided for acquisition, in other words, every citizen who is to be adversely affected in matter of his land, must volunteer and/or agree to make sacrifice. In other words, what is submitted is that, if any person does not agree to make this sacrifice, then the road can not be constructed upon his land.

(2.) State and Project Manager-cum-Chief Engineer of P.M.G.S.Y. have filed counter affidavits. In neither of them it is stated that either Gram Panchayat was consulted in the matter and they resolved and approved the plans. In regard to encroachment the Project Manager-cum-Chief Engineer, P.M.G.S.Y. has denied any encroachment which Is written also. Impression was sought to be created that a number of existing brick klin roads are only being strengthened, the truth is otherwise. A katcha road is being totally remade by raising height and strengthening embankments on both sides which necessarily and automatically leads to widening of the road flanks, thus, taking under its sweep more land than the road itself as originally laid. The State's counter based on report of the Circle Officer is that there is no rampant encroachment as alleged by the Petitioner but there is encroachment on Petitioner's land at various places. Thus, two things are clear. The local Grain Panchayat was not formally consulted and its approval taken, which was required to be done under the scheme. The consent of local people, whose lands were to be utilized, were also not taken. Thus, the very scheme was breached by the central agencies. This is not a stray case, for several such writ petitions have come up before this Court where the scheme envisages voluntary donation by people of their lands and consultation and approval of the Gram Panchayat concerned. These are sine qua non for execution of the scheme and that not having been fulfilled, the court is obliged to stop it. From the averments and arguments made, it is dear that substantial work has already been done. The contractor to whom the work was contracted, is now put in a very precarious position for no fault of his. He undertook the work as per plans given to him, naturally on the understanding that all requisite conditions have been fulfilled. Now he is being told to stop work. He has already invested huge amounts in the work. Because of stoppage order by this Court the work has got delayed. He is now being punished for fault committed by C.P.W.D. in complying with the conditions.

(3.) Having considered the matter, in my view, it is fit and proper to vacate the order passed by this Court earlier and permit the contractor to work and complete the work. However, to the extent of lands of two Petitioners involved the patches would be left undone and any soil dug up from the Petitioners land would be restored but the rest of the road would be completed.