- (1.) Heard Sri Udai Pratap Singh, learned counsel for the petitioners, Ms. Suniti Sachan, learned counsel for respondent Nos.1 to 4 and Sri Anil Kumar Singh Bisen, learned Standing Counsel for respondent Nos.5 to 16.
(2.) In this Public Interest Litigation, the petitioners are praying for the following reliefs :- "(i) Issue a writ order or direction in the nature of Mandamus thereby directing to the concerned authorities to build one of the alternate of 67 C already closed for the convenience of villagers seeing the pitiable condition of the villagers who are illiterate and farmers. (ii) Issue any other order or direction may also kindly be passed which this Hon'ble Court may deem just, fit and proper under the circumstances of the case. (iii) Allow the petition of the petitioner with costs."
(3.) In the earlier round of litigation, the matter has been finally decided by the Division bench of this Court on 1.5.2017 in the matter of Hari Prasad Mishra and others Vs. Union of India and others, passed in Writ Petition No.10538 (M/B) of 2014. Relevant paragraphs of the aforesaid order, read as under :- "It is however to be noted that the short counter affidavit already filed on record dated 21st November, 2015 has placed before the Court the letter of the Principal Secretary, Government of U.P. addressed to the Chief Engineer of the Public Works Department in relation to this very writ petition. The said letter dated 20.11.2015 is extracted hereinunder:- ...[VARNACULAR TEXT OMITTED]... This was written in response to the letter written by the Chief Engineer of the Public Works Department explaining the technical aspects relating to the non-feasibility of the construction of the railway bridge alongwith the sketch map and photographs stating therein that firstly the level of the land was such that the same was not appropriate for the construction of a railway under bridge. It was further pointed out that even otherwise there was no necessity of providing a railway under bridge as claimed, inasmuch as, only 300 meters away there is a manned railway crossing which can be utilised by the villagers for approaching their agricultural fields. These facts which have been stated in the said short counter affidavit have been replied through a rejoinder affidavit dated 13.01.2016 stating therein that the railways were agreeable to get the railway under bridge constructed provided the State of U.P. conceded to the entire financial requirements for the same and a provision was made to that effect. In the absence of the same, the file was treated to have been closed. It is thereafter that the matter was persuaded for obtaining funds and also for providing an aid to that effect upon which the Ministry of Rural Development, Govt. of India (NREGA Division) wrote a letter on 01st of March, 2016 that the said funds are not meant for utilisation for such projects as it is not permitted under the said scheme. The Commissioner, Rural Development and the State of U.P. were called upon to again pass an appropriate order and make information available about the availability of funds on which the Rural Development Department of the Govt. of U.P. through its Deputy Secretary issued an office memorandum dated 10th of March, 2016 clearly indicating therein that since making provision for funds through the MNREGA Scheme is not permissible, therefore, any financial aid cannot be extended. The petitioners in essence, therefore, have pleaded that they were also prepared to give their land for such construction but inspite of this the respondent - State Government was reluctant to make any provision of funds about which proposals were being sent time and again. The proposal for providing the funds had been engaging the attention of the various departments but as indicated above, the technical feasibility was clearly found to be deficient for the construction of the railway under bridge. The petitioners have nowhere challenged the said report of the State Government and of the Chief Engineer of the Public Works Department, but in their rejoinder affidavit, have alleged that they are prepared to give their land in order to meet this exigency and also that the railways had no objection to the railway under bridge being constructed. In the background aforesaid what we find is that this issue relating to technical feasibility as also the availability of funds is a matter of executive concern. The availability of an alternative route at a distance of 300 meters have been clearly stated therein which fact had not been denied in the rejoinder affidavit. It is also on record that a proposal had been sent by the District Magistrate, Sultanpur vide his letter dated 22nd of May, 2014 for making a provision at Rs. 244.76 Lacs for the construction of the railway under bridge. What we find is that the Public Works Department has considered it to be not feasible for two reasons; firstly that a manned railway crossing is available at a distance of 300 meters which can be utilised and secondly, the level of the land was not such that it could be utilised for the construction of a railway under bridge. In the aforesaid background, we cannot compel the respondents to proceed to construct the railway under bridge as they have also indicated that there was an existence of only a brick sould Kharanja road on one side without there being any road at the other side of the track. The aforesaid issues, therefore, being one of a public demand do not call for a judicial intervention on account of the aforesaid technical aspects that have been brought forward and which remain unchallenged before us. Consequently, we consign this petition to records without prejudice to the rights of the petitioners to persuade the State Government to proceed for such funds and get an under bridge constructed with the co-ordination with the railways department. The disposal of this writ petition will not be an impediment in their passage. Consigned to records with the said observations." ;