Praful Khandubhai Desai vs Vadodara Municipal Corporation

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J.B. Pardiwala, J.—By this writ-application in the nature of a Public Interest Litigation, the petitioner, running an NGO in the name of "Jagte Raho" at Vadodara, has prayed that the work of construction of a flyover at the Harinagar Junction on Gotri Road of Vadodara City be stopped and the Vadodara Municipal Corporation be directed to reconsider its decision of constructing the Flyover at the Harinagar junction.

The petition in public interest is substantially on two grounds. First, that the corporation has awarded the contract for construction of the flyover without studying the report of the Central Road Research Institute and secondly, the contract has been awarded at a much higher price.

The respondent no. 1-Vadodara Municipal Corporation has denied the allegations leveled in the petition and prays that the petition is not a bonafide Public Interest Litigation and the same is at the behest of one Shri Pravinsinh, a private individual whose property falls in the alignment of the flyover being constructed by the Corporation. According to the Corporation such fact is amply borne-out from the documents annexed to the petition.

Mr. Maulik Nanavati, the learned advocate appearing on behalf of the Vadodara Municipal Corporation submits that the decision on the part of the Corporation to construct the flyover at the Harinagar junction could not be termed as arbitrary or whimsical but is one on the recommendation made by the various Consultants and agencies having expertise of studying and analyzing the traffic movement and suggesting options for reduction of vehicular congestion. Mr. Nanavati has drawn our attention to the fact that in the year 2007, M/s. RITES Limited, a Government of India enterprise had conducted a detailed study and prepared a comprehensive traffic and transportation plan. In its report, the agency forecasted movement of 4450 Passenger Car Units (PCU) in the year 2011, 5285 PCU in the year 2016 and 6277 in the year 2021. It accordingly recommended the construction of 8 lane carriageway.

Mr. Nanavati invited our attention to the fact that one another Consultant M/s. SREI Infrastructure Finance Ltd., also prepared a comprehensive mobility plan for the Vadodara City opining as under:

"Harinagar junction has proximity to Race Course Rotary/Gyratory and is the gateway to Gotri road where major Residential/Commercial development in the area of New Alkapuri, Sevasi, Sindhrot have come up recently. This has led to increase in the traffic volume and congested conditions are observed especially in the peak hours. It has been proposed to construct a flyover at Harinagar junction in order to decongest the node and smoothen traffic flowing across the junction on Gotri road.

Traffic volume figures observed at the junction shows approach traffic volume of 5044 PCU in the morning peak and 5125 PCU in the evening peaks. The average daily traffic observed at junction was 50,000 PCU. Major delays occur on Gotri Road leading to long queues at the approaches Race Course Gyratory and leads to locking of the roundabout. This results in congesting the entire area and poses major problem for smooth flow of traffic especially in the peak hours.

Accordingly, a traffic forecast at the junction has been done for next 5 years assuming a growth rate of 7.5% taking into account the large scale development taking place along Gotri Road-major generator of traffic at this node. The predicted traffic by year 2012 is nearing 7500 PCU and currently traffic is regulated and controlled by traffic signal. The junction will approach 10,000 PCU by year 2015/2016 which will be the threshold for at-grade signal capacity. Normally, signal control become difficult after the junction crosses the peak hour traffic volume of 7500.

The junction approach volume nearing 10,000 PCU result in hazardous and inefficient traffic conditions and safety of pedestrians is very low. The saturation flow at the junction was more than 1.25 in 2007. Normally, Y value of less than 1.0 is necessary for smooth operation by signal control. Therefore, it can be concluded that the junction is congested and the present signal system is not able to control the traffic and there may be a requirement of grade separator in future.

Hence to decongest the junction and to smoothen the traffic flow there is requirement of grade separation in the form of flyover across Gotri Road with efficient traffic management measures for safety of pedestrian and NMT modes."

Lastly the CSIR-Central Road Research Institute (CRRI), was entrusted the work of conducting the traffic studies for selected 16 inter-section in the City on a priority basis and the said agency reported that according to the Classified Traffic Volume Survey, heavy pick hour traffic was observed at the Gotri Road, Harinagar junction (17,716 PCUs). According to the agency, the intersection qualified for a grade separated facility and recommended provision of providing grade separated facility immediately to ensure smooth movement of the traffic.

Mr. Nanavati, also drew our attention to the fact that in the backdrop of such an extensive study, noticing high volume of vehicular traffic at the intersection and recommending construction of a grade separated facility, the Corporation took the decision to construct a flyover at Harinagar junction which could not be termed as arbitrary or without any justification.

Mr. Nanavti further submitted that the allegations leveled by the petitioner as regards the monetary loss are also baseless. The cost of constructing the flyover was estimated by the independent consultant on the basis of the published government rates and approved under the Jawaharlal Nehru National Urban Renewal Mission approximately to the tune of Rs. 39,85,00,000/-. The Corporation has awarded the contract to the respondent contractor at Rs. 31,45,90,946/-, the value of which is 14.25% less than the estimated cost. Mr. Nanavati submits that if viewed in juxtaposition with the value at which the contract was awarded in the year 2011 to M/s. Ranjit Builcon as alleged by the petitioner, the price at which the present work is being executed is competitive and economical if the aspects like the price inflation, cost escalation and other relevant parameters influencing the execution of the civil work are taken into consideration. Mr. Nanavati submits that the submission on behalf of the petitioner that the decision to award the contract to the respondent contractor, deserves to be reviewed or recalled because of a subsequent event of collapse of a slab of a flyover being constructed by the respondent contractor at Surat is also illogical and merits no consideration.

Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this Public Interest Litigation is, whether the decision of the Vadodara Municipal Corporation to construct a flyover at the Harinagar junction on Gotri Road of the Vadodara City should be condemned for the reasons assigned by the petitioner.

Analysis:

10.1 Taking into consideration the complex nature of the issue with which we are dealing, we have to be mindful of the principle that judicial review and interference in matters, which requires technical expertise must be best left to the experts to decide upon.

10.2 In BALCO Employees Union (Regd.) Vs. Union of India and Others, , the Supreme Court observed in paragraph 46 as under:

"It is evident from the above that it is neither within the domain of the Courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical."

10.3 The Supreme Court further proceeded to observe that in examining a question of the nature where a policy was evolved by the Government, judicial review thereof is limited. On matters affecting policy and requiring technical expertise, the Court should leave the matter to the experts who are qualified to redress the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of powers, the Court will not interfere with such matters.

10.4 In the words of Chief Justice Neely:

"I have very few illustrations about my own limitation as a Judge, I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master subsisting its judgment for that of the administrator."

10.5 As held in Tata Cellular Vs. Union of India, , judicial review of administrative decisions is against the decision making process and not against the merits of the decision. In the same decision, it was also held that the modern trend points to judicial restraint in administrative action and the Court does not sit as a Court of appeal over administrative decisions as it does not have the expertise in this connection. The Government must have freedom of contract and a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. No doubt the decision can be tested by the application of Wednesday principle of reasonableness and should be free from arbitrariness, bias or mala fide but otherwise the Court should not interfere with such decision.

10.6 In Federation of Railway Officers Association and Others Vs. Union of India (UOI), , the Supreme Court held that matters relating to policy and requiring technical expertise should be left for the decision to those qualified to address the issue and the Court should not interfere unless the decision is arbitrary or irrational.

We may only say that after an extensive study and based on the opinion of the experts, the Vadodara Municipal Corporation has taken the decision to construct a flyover at the Gotri Road, Harinagar junction. How to construct a flyover or where to construct a flyover, is not for the Court to decide. The Court cannot sit over the judgment of the authorities entrusted with the task of planning and executing project relating to construction of a flyover. We do not possess the engineering expertise in the field of infrastructure and the viability and feasibility of a particular project. In our opinion, it could not be said that any of the fundamental right or any other legal right of the petitioner or the public at large has been violated or infringed so as to maintain this petition.

At this stage, it will be profitable for us to refer to a recent pronouncement of the Supreme Court on the subject with which we are dealing with in this petition. In Union of India (UOI) Vs. Dr. Kushala Shetty and Others, , the Supreme Court, while dealing with almost identical issue, made the following observations.

"Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be exfacie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained."

For the foregoing reasons, we do not find any merit in this petition and the same is accordingly rejected. No costs.