WP/29253/2013 of M/s. U. Pattabhiramaiah, Vs Government of Andhra Pradesh, rep.by its Principal Secretary on 31 December 2013

O R D E R:

This Petition is filed seeking a writ of mandamus for declaringthe action of the respondents in rejecting Proposal Nos. 9 and 9Asubmitted by the petitioner vide letter dated 29-07-2013 mechanicallywithout any application of mind and without considering the same ina proper perspective, as arbitrary, illegal and unconstitutional.

The case of the petitioner is that it, being a partnership firm,owns and possesses land admeasuring Ac.8-00 situate in SurveyNo. 567, Ghatkesar Village and Mandal, Ranga Reddy District. Somewhere during 1978, the petitioner firm constructed three blocksof godowns on the said site, as per the specifications and designsfurnished by the Food Corporation of India (FCI), so that thesegodowns can be used for storage of food grains. Each godownconsisting of approximately 15000 square feet area and totally, thegodown space occupied is of 95000 square feet of constructed area.The godowns are used for warehousing activity by the AndhraPradesh Civil Supplies Corporation, Andhra Pradesh StateBeverages Corporation, Food Corporation of India etcetera. However, the State has proposed to acquire the subject land with thegodowns standing thereon, for the purposes of constructing an“Outer Ring Road” (ORR)-an express highway conceived for rapidroad transportation facility. The respondents have proposed aninterchange junction on the ORR at Ghatkesar Village. They haveinitially chosen “Full Clover Leaf Interchange Design” andsubsequently, modified it into “Partial Clover Leaf InterchangeDesign”. This change in the design has been brought about,according to the petitioner, to help the cause of the influentialpersonalities, whose lands are sought to be saved in the process. It was also asserted by the petitioner that a further change in thedesign has been brought about and now, a “Double TrumpetInterchange” is what has been conceived at this junction. Accordingto the petitioner, as per the original “Full Clover Leaf InterchangeDesign”, the godown belonging to the petitioner could have beenpossibly saved as they would get enclosed within the southwestquadrant of the junction. It is all because of the change in the designof the interchange, the land and the godowns standing thereon arenow being impacted. When the Land Acquisition Officer passed anAward, the petitioner herein filed Writ Petition No.2198 of 2012,which was disposed of by this Court on 30-01-2012, leavingit open to the petitioner to submit a representation with regard to thedesign change so as to save the godowns constructed by it to theextent possible. It is the case of the petitioner that in accordancewith the Judgment rendered by this Court in Writ Petition No. 2198 of2012, five different proposals have been suggested to therespondents for their consideration as an alternative for the purposeof designing the inter-junction at Ghatkesar. It is the case of thepetitioner that the technical consultants of the respondents / ORRProject, namely, M/s. Aarvee Becom JV Associates has acceptedtwo designs out of the five alternative designs, namely, ProposalNos. 4 and 5, but however, both these proposals have been rejectedsummarily by the respondents. Proposal No.4 has been rejected onthe ground that it would involve an additional expenditure of Rs. 50 lacs for modifying the design, in view of the increase in theramp length and also for construction of a retaining wall. Further, itwas indicated that no access to the National Highway from thegodown premises can be provided. Proposal No.5 of the petitioner isstated to have been rejected by the respondents on the ground thatthe transition lengths are not maintained as per the codal provisionsand if re-designed, part of the godowns gets affected. In that

Facts

background, the petitioner is stated to have submitted anotherrepresentation on 11-09-2012 stating that it is willing to bear theadditional expenditure of Rs.50 lacs and also utilize the access fromthe service road to its godowns without insisting upon the directaccess from the National Highway. But however, that proposal wasalso not accepted. Hence, the writ petitioner has filed another WritPetition No.28592 of 2012 and that was disposed of by this Courtdirecting the respondents to spare attention to the representationdated 11-09-2012 and pass appropriate orders thereon. It is thisrepresentation, which was considered by the respondents, buthowever, when certain technical objections were pointed out, thepetitioner has updated its representation on 22-02-2013 suggesting a new proposal bearing No.9A dulyincorporating modifications to the earlier design suggested by it. Instead of appreciating the sincere efforts made by the petitioner toneutralize all such objections, which the technical consultants of theORR Project have been raising, the respondents have high-handedlyrejected the proposal of the writ petitioner without considering themerits of the proposal in an objective manner.

Respondents have filed a detailed counter affidavit in thematter.

Heard Sri Ghanta Rama Rao, learned Senior Counsel as wellas the learned Government Pleader for Municipal Administration, SriY. Ravindra, learned Standing Counsel for Outer Ring Road Projectand Sri Dhanamjay Reddy, learned Standing Counsel for HyderabadMetropolitan Development Authority.

Sri Rama Rao, learned Senior Counsel, would submit that thepetitioner firm is entitled to protect the properties, which it owns, in alawful manner. If the respondents are acting arbitrarily and unjustly,there is nothing wrong in the petitioner firm requiring the respondentsto be fair and objective towards the proposal submitted by it. The learned Senior Counsel would submit that as against the originalestimate of Rs.50 lacs additional expenditure, which was suggestedas is required, the respondents have high-handedly raisedthe additional expenditure likely to be incurred to Rs. 6 crores, sothat the value of the godowns, which are sought to be protected,would not support incurring such a huge expenditure of Rs.6 crores. According to the learned Senior Counsel, there is no justificationwhatsoever behind the cost escalation indulged in by therespondents. As the execution of the project work is fairly at initialstages and not much of a progress has been achieved, on animaginary basis, the respondents have escalated the cost to Rs.6crores. According to the learned Senior Counsel, the petitioner hasagreed to meet the redundant expenditure incurred by therespondents so far by undertaking minor constructions, which theyhave executed so far. But, if the respondents fancifully increase theescalation of the costs to Rs.6 crores, the petitioner is thoroughly justified in seeking todemonstrate before this Court that no such amount towardsescalation is really needed.

Since the learned Senior Counsel repeatedly urged that thepetitioner is wiling to meet all such reasonable cost escalation thatmight be involved all due to change of design, I have suggested tothe respondents to maintain separate accounts so far as the costsfor the construction of the interchange at Ghatkesar is concerned, sothat if the escalation does not really come to the order of Rs.6 crores, the petitioner will be entitled to have the benefit ofrefund of the remaining / unspent money. However, the petitionerhas not accepted the proposal to deposit Rs.6 crores with therespondents.

I had also been assisted on various dates when this matterhas been taken up for consideration by Sri N. Surya Prakash

Reddy, Chief General Manager, Sri B. Anand Mohan, GeneralManager and Sri B. Ravinder, Deputy General Manager, HyderabadGrowth Corridor Limited, Outer Ring Road Project. The variousproposals suggested by the petitioner with regard to the modificationof the design of the interchange deal with a completely technicalsubject requiring technical knowledge for appreciation. As to whatshould be the ideal choice of designs, is a matter that should be leftto the ultimate opinion of the experts. In my humble opinion, theHigh Court does not have the necessary expertise or skill toappreciate the intricacies of the value-based judgment behind thechoice of the design. It is the technical experts, who alone cancome up with an appropriate design that suits the requirements ofmotor vehicle users for whose benefit the ORR Project isconceived. The ORR Project, as I could understand, is a rapid urbanroad transportation system. The vehicular traffic of a particularclass alone is permitted to travel on this road. Slow-moving traffic,thus, has been eliminated from gaining entry into this expresshighway. Thus, two-wheelers, three-wheelers and other slow-moving traffic are completely forbidden from entering on to theORR. As a consequence, over the entire length of the ORR, rapidtransportation facility of the traffic in a uni-direction mobility isconceived. The express way was conceived for the four-wheelers totravel at an average speed of 90 kilometers per hour. In fact, thatwas the objective behind the design. It will only enable the vehiculartraffic to pass through this stretch in quick time. When once heavytraffic is expected to hit the roads and that too at such high speed,every care has got to be taken to ensure that the intersections do notcause a concern. Unlike in the cases of the design of a StateHighway or a National Highway, intersections of roads cannot beopened up just like that on to an ORR. That will be contributingheavily to conflicting situations between various varieties of vehicles. It is not very difficult for me to imagine the risk factors andhence, the vehicular traffic, which comes from the sidelines, cannotbe permitted to join the ORR just like that. Otherwise, they willimmediately come in conflict zone of the speeding vehicles. Therefore, the intersections for the ingress and aggress of thevehicles have got to be designed with lot of care and attention. Theproposals submitted by the petitioner, I am of the opinion, havereceived adequate and appropriate considerations also. In fact, atmy instance, the State Government has constituted a high-levelteam comprising a Principal Secretary to the Government andvarious other high ranking officers, who are technical experts, whohave visited the site in question and studied critically the ProposalNo.9A submitted by the petitioner. After studying the same, thePrincipal Secretary to the Government in the MunicipalAdministration & Urban Development Department, has filed adetailed affidavit in the matter. In para 5 of the said affidavit, thereasons why the proposal of the writ petitioner has not been accepted, have been spelt out, in detail, and they read as under:

accepted, have been spelt out, in detail, and they read as under:

“5. It is submitted that the Mr. M.C. Pargaien, SpecialSecretary to Government, MA&UD Department hassubmitted his report vide letter dt:17.12.2013 toGovernment. The contents of inspection report are asbelow:

(1) The petitioner Sri A. Murali Krishna mentioned thathe has submitted various proposals for modificationof Ghatkesar Interchange design to save hisgodowns, viz., Proposals No-1, 2, 3, 4, 5, 6, 7, 8, 9and 9A. It is mentioned that, he has recentlysubmitted Proposal No.-5A & 10 on 21-08-2013requesting the ORR Authorities to consider theproposal for modification of Ghatkesar Interchangedesign. The Special Secretary to Governmentmentioned that, it is open to the petitioner topropose any one of the alternative designs to thejoint inspection team and requested the petitioner topropose accordingly. It shall be the final design forconsideration to examine the feasibility of anyalternative Interchange design. The Petitioner afterhe has submitted various proposals for modificationof Ghatkesar Interchange design to save hisgodowns, viz., Proposals No-1, 2, 3, 4, 5, 6, 7, 8, 9and 9A. It is mentioned that, he has recentlysubmitted Proposal No.-5A & 10 on 21-08-2013requesting the ORR Authorities to consider theproposal for modification of Ghatkesar Interchangedesign. The Special Secretary to Governmentmentioned that, it is open to the petitioner topropose any one of the alternative designs to thejoint inspection team and requested the petitioner topropose accordingly. It shall be the final design forconsideration to examine the feasibility of anyalternative Interchange design. The Petitioner after discussing with their Representatives andEngineers has proposed plan No-9A as his finalproposal for consideration of the Inspecting Teamand furnished a drawing duly signed by Sri A.Murali Krishna, representative of the Petitioner(enclosed as Annexure-II). The Special Secretaryrequested the inspecting team to examine theProposal No-9A submitted by the Petitioner fortechnical feasibility. The Petitioner’s Engineer, Dr.S. Nagabhushana Rao stated that the Proposal-9Ais prepared in accordance with the relevant codalprovisions.

(2) The joint inspection report further mentioned thatthe Petitioner Sri A. Murali Krishna has submittedletter in 13-12-2013 after the inspection, addressedto Special Secretary to Government, MA & UDDepartment mentioning that “he has requested PD,ORR to furnish certain information vide his letterdated: 12-12-2013, with regard to providingstructural drawings and design for the cost shown inabstract dated:04-05-2013 and 24-06-2013”. Thecontents of the representation dated: 13-12-2013also have been examined by the Inspecting Team. The original approved design duly superimposingthe proposed design of the Petitioner as per plan 9Ais enclosed as Annexure-III. The joint inspectionteam has therefore opined that the modifiedinterchange design as per the Proposal No.9A nearGhatkesar, requested for by the Petitioner, istechnically not feasible. The Technical feasibility ofthe modified interchange as per Proposal No.9A isexamined and the following observations aremade.

(a) The radius of curvature of the trumpet as permodified design suggested by the petitionerwill be only 55m in lieu of 65m required asper the norms being adopted in the design oftrumpet interchanges in ORR Project. Thiswould restrict the speed of vehicles in thetrumpet area and would lead to congestionduring peak hours of traffic.modified design suggested by the petitionerwill be only 55m in lieu of 65m required asper the norms being adopted in the design oftrumpet interchanges in ORR Project. Thiswould restrict the speed of vehicles in thetrumpet area and would lead to congestionduring peak hours of traffic.

(b) The petitioner’s godowns need access roadfor the movement of vehicles bound to andfrom the godowns. The two alternativesavailable for providing access are as under.for the movement of vehicles bound to andfrom the godowns. The two alternativesavailable for providing access are as under.

i)From the National Highway

The ORR bound NH Traffic withinthe Ghatkesar Interchange areawill ply on the auxiliary lane beingprovided before exiting from theNH. The vehicles departing fromthe godowns would have to crossthe auxiliary lane before enteringthe flow of traffic on NH whichwould result in conflict and maylead to accidents unless severespeed restricting measures likeproviding speed breakers, etc., onNH are resorted to. However, thesame is neither preferable norpermissible in such a highcapacity Interchange area fromsafety considerations. A sketchshowing typical movement oftraffic depicting the likely conflictis enclosed as Annexure-IV.

ii)

From the Service road on therear side

Access to Petitioner’s godownscannot be given from theService Road as the samewould violate the Specialdevelopment regulations(Regulation No.6) notified inG.O.Ms.No.470, MA & UD (II)Dept. dated: 09-07-2008.

(3) The opinion rendered by the technical expert of thepetitioner, views of Project Director, Outer RingRoad on the proposed design as per Proposal-9Aand the observation of the Technical members ofthe Team were examined and it is concluded that,the modified interchange design as per theProposal No. 9A near Ghatkesar, requested for bythe Petitioner, is technically not feasible.”

After receiving a copy of this report, a reply- affidavithas been filed into the matter by the petitioner firm once againreiterating that Proposal No.9A has not been objectively considered

at all by the respondents. Sri Ghanta Rama Rao, learned SeniorCounsel has pointed out that the sketch at page 52 of the paper book(a sketch showing Proposal No.9A) clearly disclosed that the radiusof the Trumpet design suggested by the petitioner firm is having 65meters, whereas the affidavit of the Principal Secretary to theGovernment would indicate as if there is only a 55-meter radiusavailable. Thus, Sri Ghanta Rama Rao would assert that therespondents are somehow prejudiced against the petitioner firm andthey went on rejecting the proposals on hand without any seriousapplication of their minds. At that stage, the matter has beenadjourned once again by me to enable the learned GovernmentPleader for Municipal Administration as well as Sri Y. Ravindra, tohave one more round of consultations with the technical experts withregard to this aspect of the matter. Accordingly, the learned counselfor the opposite parties have secured the presence of Sri B. AnandMohan, General Manager, Hyderabad Growth Corridor Limited, ORRProject. The learned General Manager has pointed out that thesketch prepared by the petitioner firm, undoubtedly, has indicatedthe radius to be at 65 meters, but however, the site conditions, whichhave been inspected in the presence of the petitioner, clearlydisclosed that the radius for the Trumpet can, at best, attain 55meters, but not 65 meters, inasmuch as there are certain other un-surmountable difficulties for achieving 65 meters radius Trumpet. Itis also suggested that a storm water drain is there and further it isnot feasible at the site for achieving the slopes and hence, a 65meter radiusis not capable of being achieved. In my opinion, this isa judgment of a technical expert and he is not the only individual whohas inspected it. A team of officials has inspected the siteconditions and based upon an objective study of the site conditions,the team opines that the radius of 65 meters, which is so essentiallyneeded, cannot be achieved at that site. Such an opinion cannot be brushed aside lightly by a Court.

brushed aside lightly by a Court.

I have been repeatedly suggesting to the learned SeniorCounsel to have a consultation with any academic or researchorganization, such as, the College of Engineering, OsmaniaUniversity or the College of Engineering, Jawaharlal NehruTechnological University, Hyderabad, or any other road designresearch institute, so that any such academic and research bodycan come up with an acceptable alternative suggestion and thesame, perhaps, could have been put to consideration by therespondents. Unfortunately, the petitioner firm has suggested thatthe Court should call upon such expert bodies to undertake the studyand come up with an alternative suggestion. I am not in a position toappreciate that contention; the reason being; the Court does not haveany expertise to even basically doubt the correctness of the designconceived by the respondents. It is for the petitioner firm to haveavailed such a facility. If there is an alternative feasibility reportmade available, perhaps, at best, the Court can put it forconsideration of the respondents. The Court itself cannot pick upone design in place of the other. I am, therefore, not in a position tocome to the conclusion that the action of the respondent in rejectingProposal No.9A suggested by the petitioner firm is the result of amechanical rejection. Lot of thought and attention has been sparedto it and, thereafter, the proposals were rejected. In my opinion, theproposal has received a fair and adequate consideration and forsheer want of expertise and knowledge, I refrain myself fromentering into any guess as to whether Proposal No.9A suggested bythe petitioner is, in fact, a feasible one or, for that matter, is the bestalternative to the design conceived by the respondents. I, therefore,do not find any justifiable reason for entertaining the claim of the writpetitioner and hence, this Writ Petition is dismissed at the admissionstage, but however, without costs.

However, if the petitioner firm can avail a last and final chanceto convince the respondents with any technically-feasible alternative,it may do so within one week from today and I have no doubt, in mymind, that any such proposal would receive appropriateconsideration at the hands of the respondents in the next two daysthereafter.

______________________________

NOOTY RAMAMOHANA RAO, J.

mrk Date.31.12.2013.