IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.W.P. No.15777 of 2023

Malkiat Singh aged 73 years, S/o Gurditta Ram, R/o Village Ajmer, Tehsil
Mukerian, District Hoshiarpur.

(Aadhar No. 2888-5467-3570 & Mobile no. 9855920371)

….Petitioner

VERSUS

1. State of Punjab through its Secretary, Irrigation Department, Punjab Civil

Secretariat-2, Sector 9-A, Chandigarh.
2. Deputy Commissioner, Hoshiarpur.
3. Sub Divisional Magistrate cum Land Acquisition Collector, Mukerian,
tehsil Mukerian, Hoshiarpur.
4. Chief Engineer, Canals, Punjab, Madhya Marg, 18B, Sector 18,
Chandigarh.
5. Dy. Chief Engineer (construction), Northern Railway, Chandigarh,
Railway Colony, Sector 13 Chandigarh, 160102.
…..Respondents

Reply by the way of counter affidavit by Dinesh Kumar,

Executive Engineer, Talwara, Canal Division, WRD, Punjab, Talwara,
Tehsil Mukerian, District Hoshiarpur on behalf of Respondent Nos. 1&4.

I, the abovenamed deponent do hereby solemnly affirm

and declare as under:-
RESPECTFULLY SHOWETH:-
Preliminary Submissions:-
1. That the deponent is fully aware of the facts and circumstances of the
case thus is competent to swear this affidavit.

2. That the present Civil Writ Petition is pending before this Hon’ble court
and is fixed for hearing on date 26-3-2024.

3. That the petitioner has preferred the present Civil Writ Petition in the
nature of Mandamus for direction to the official respondent nos. 1 to 3,
in view of the letter dated 9-8-2022 (Annexure P-5) issued by
respondent no.3 for the construction of underpass below the canal, so
that it may be connected to the RUB (Railway Under Bridge) because
there is no passage from below to cross the canal nor any bridge over
the canal at the location, and hence rendering the petitioner unable to
take machinery equipment and vehicles for his field to the other side of
the proposed railway track, which is the only source of livelihood for
the petitioner and for further direction be issued to Respondent no.1 to
decide the representation dated 11-1-2023 (Annexure P-9) within
stipulated time according to law to see the exigency of the case.

4. That vide Annexure P-5 the respondent no.3 Sub Divisional Magistrate
cum Land Acquisition Collector (Railways) Mukerian sent a letter dated
9-8-2022 to Deputy Commissioner of Hoshiarpur stating therein that
the construction of RUB by railway is only feasible if the State
Irrigation Department agrees to construct an underpass below canal so
that it may be connected to the approach of RUB to be provided and the
consent of the State Irrigation Department to construct an underpass
below the canal at their own cost may be obtained and convey it to the
railway. It is pertinent to mention here that the respondent no.4 vide his
letter no. 4864-65/4CANALS-2 dated 7-7-2023 written to the deputy
 commissioner of Hoshiarpur that funds maybe provided along with
NOC from the Department of Railway for the construction of railway
crossing of Village Ajmer Tehsil Mukerian District Hoshiarpur.
Thereafter several reminders were issued vide letter no.s 5390-
91/4CANALS-2 dated 31-7-2023, and 4092-94/7-W dated 1-9-2023 to
the Deputy Commissioner of Hoshiarpur but no action has been taken
in the matter so far. Copies of letters are attached herewith as Annexure
R1, R2 & R3.
In this connection it is submitted that this exigency has
been cropped up solely because of the construction of Railway line by
the Railway Department and the State Irrigation Department is not
liable to construct an underpass owing to railway project and it is the
sole responsibility of Railway Department to provide necessary passage
to the villagers. However, if the Railway Department will provide the
requisite funds along with NOC to the State Irrigation Department
Punjab, then the construction of underpass below the canal would be
possible.

5. That the petitioner has prayed to this Hon’ble court to direct respondent
no.1 to decide the representation dated 11-1-2023 (Annexure P-9).
In this connection it is submitted that the petitioner Sh.
Malkit Singh has not submitted the said representation to the
respondents whereas the said representation has been made by some
other person namely Sh. Ram Singh and the petitioner is not an
applicant in this representation. In such circumstances he cannot seek
directions from this Hon’ble court on the basis of other person.
 In view of the facts and circumstances narrated above, the present
writ petition qua to respondent no.1 & 4 is liable to be dismissed in the interest
of justice.

ON MERITS:-

1. That the contents of para no.1 of the writ petition are admitted to the extent
that the petitioner is a citizen of India and resident of above mentioned
address. But this mere fact dose not entitle the petitioner to invoke the
extraordinary writ jurisdiction of Hon’ble court under Article 226/227 of
the Constitution of India.

2. That the contents of para no. 2 purely relate to the Railway Department as
the application in Annexure-1 has been addressed solely to the Railway
Authorities and the preliminary submissions may kindly be read as a part
of reply to this para.

3. That the contents of para no. 3 purely relate to the Railway Department as
the application in Annexure P-2 has been solely addressed to the Railway
Authorities and the preliminary submissions may kindly be read as a part
of reply to this para.

4. That the contents of para no.4 purely relate to the Railway Department as
the application in Annexure P-3 has been solely addressed to the Railway
Authorities and the preliminary submissions may kindly be read as a part
of reply to this para.

5. That the contents of para no.5 purely relate to the Railway Department as
the application in Annexure P-4 has been solely addressed to the Railway
 Authorities and the preliminary submissions may kindly be read as a part
of reply to this para.

6. That in reply to para no.6, it is submitted that this exigency has been
cropped up solely because of the construction of Railway line by the
Railway Department and the State Irrigation Department is not liable to
construct an underpass owing to railway project and it is the sole
responsibility of Railway Department to provide necessary passage to the
villagers in case of any obstruction caused by the said construction.
Therefore, the construction work for the underpass below canal has to be
carried by the Railway Department only.

7. That the contents of para no.7 purely relate to the Railway Department as
the application in Annexure P-6 has been solely addressed to the Railway
Authorities and the preliminary submissions may kindly be read as a part
of reply to this para.

8. That in reply to para no.8, the contents of preliminary submissions maybe

be read as a reply to this para in as much as the subject matter relates to
Railway Department.

9. That in reply to para no.9, the contents of preliminary submissions maybe

be read as a reply to this para in as much as the subject matter relates to
Railway Department.

10. That vide Annexure P-5 the respondent no.3 Sub Divisional Magistrate
cum Land Acquisition Collector (Railways) Mukerian sent a letter dated 9-
8-2022 to Deputy Commissioner of Hoshiarpur stating therein that the
construction of RUB by railway is only feasible if the State Irrigation
 Department agrees to construct an underpass below canal so that it may be
connected to the approach of RUB to be provided and the consent of the
State Irrigation Department to construct an underpass below the canal at
their own cost may be obtained and convey it to the railway. It is pertinent
to mention here that the respondent no.4 vide his letter no. 4864-
65/4CANALS-2 dated 7-7-2023 written to the deputy commissioner of
Hoshiarpur that funds maybe provided along with NOC from the
Department of Railway for the construction of railway crossing of Village
Ajmer Tehsil Mukerian District Hoshiarpur. Thereafter several reminders
were issued vide letter no.s 5390-91/4CANALS-2 dated 31-7-2023, and
4092-94/7-W dated 1-9-2023 to the Deputy Commissioner of Hoshiarpur
but no action has been taken in the matter so far. Copies of letters are
attached herewith as Annexure R1, R2 & R3.

11.That in reply to para no.11, it is respectfully submitted that no question of

law is involved in the present writ petition qua to respondent no. 1 and 4
for the consideration of this Hon’ble court.

12.That in reply to para no.12 of the writ petition, it is submitted that there is
no cause of action qua to respondent no. 1 & 4 to file the present writ
petition under Article 226/227 of the Constitution of India.

13. That the contents of para no.13 are denied for want of knowledge.

Keeping in view the submissions made above, it is, therefore, most

respectfully prayed that the present writ petition may kindly be dismissed
with cost qua to respondent no. 1 & 4 being devoid of merits in the interest
of justice.
 Place:

Dated: DEPONENT

(Dinesh Kumar)

Executive Engineer Talwara,

WRD, Punjab, Talwara

Tehsil Mukerian, District Hoshiarpur

Verification:-

Verified that contents of preliminary submissions 1 to 5 and on merits 1

to 13 are correct to the best of my knowledge and the information as derived from
the official record. No part of it is false and nothing has been concealed therefrom.

Place:

Dated: DEPONENT

(Dinesh Kumar)

Executive Engineer Talwara,

WRD, Punjab, Talwara

Tehsil Mukerian, District Hoshiarpur