Supreme Court of India
STATE OF KERALA & ANR. ETC. ETC. versus M/S RDS PROJECT LIMITED & ORS. ETC. ETC. on 22 September 2020
[2020] 6 S.C.R. 837
STATE OF KERALA & ANR. ETC. ETC.
v.
M/S RDS PROJECT LIMITED & ORS. ETC. ETC.
(Civil Appeal Nos. 3239-3246 of 2020)
SEPTEMBER 22, 2020[R. F. NARIMAN, NAVIN SINHAAND INDIRA BANERJEE, JJ.]
Administrative Law: Judicial review – Project of flyover onNational Highway constructed by respondent no.1 – After a yearof its use, the Ministry of Road Transport and Highways found it tobe in a distressed condition with several cracks requiringrehabilitation measures – The IIT was thereafter appointed as anexpert agency which opined that the bridge could follow a carbonfibre composite treatment and be repaired instead of beingdemolished – Meanwhile Dr. E. Sreedharan recommended thestrengthening and replacement of RCC girders with PSC girders toensure durability which would necessitate demolition andreconstruction and further stated that his plan ensured a 100 yearguarantee for the newly constructed flyover – In view of divergentopinion, the State government set up a High Level Committee – ThisCommittee accepted the proposal by Dr. Sreedharan in view of theservice life assured by him for 100 years – State Governmentaccepted the report of High Level Committee – Writ petition byrespondent no.1 against the order of State Government – High Courtdirected Government to conduct load test of the flyover – Hencethe instant appeal – Held: High Court instead of applying wellestablished parameters of judicial review and ascertaining whetherthe decision of the State Government would vitiate Art.14 went intothe matter itself and held that was better to have a load testconducted to avoid any further controversy in the matter – StateGovernment in accepting the Expert Committee report cannot besaid to have behaved arbitrarily – Order of High Court set aside.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3239-3246 of 2020.
From the Judgment and Order dated 20.12.2019 of the High Courtof Kerala at Ernakulam in R.P. No. 1253/2019 in W.P.(C) 26030/2019,
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AR.P. No. 1251/2019 in W.P.(C) 26405/2019, R.P. No. 1249/2019 inW.P.(C) 25362/2019, R.P. No. 1243/2019 in W.P.(C) 25343/2019 andcommon order dated 21.11.2019 in W.P.(C) No. 26030/2019, W.P.(C)No. 26405/2019, W.P.(C) No. 25362/2019 & W.P.(C) No. 25343/2019.
K.K. Venugopal, Attorney General for India, Dr. Abhishek ManuBSinghvi, Jaideep Gupta, Gopal Sankaranarayanan, V.Giri, Rana MukharjeeSr. Advs., Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena Prakash, G.Prakash, Pragyan Pradip Sharma, Ms. Amita Singh Kalkal, EeshanPandey, Deepu Thankan, Ms. Madhavi Khanna, Karan Valecha, Ms.Lakshmi, Ms. Gurnoor Kaur, Prakash Ranjan Nayak, K.V. Manoj Kumar,Kumar Shashank, Surjendu Sankar Das, Nithin George, Ms. Annie Mittal,CKrishna Dev Jagarlamudi, Zulfiker Ali P. S, Rafeek V.K., Advs. for theappearing parties.
The Judgment of the Court was delivered by R.F. NARIMAN, J.D1. Leave granted.
The Judgment of the Court was delivered by R.F. NARIMAN, J.D1. Leave granted.
2. Heard Mr. K.K. Venugopal, learned Attorney General for Indiaappearing on behalf of the State of Kerala, Dr. Abhishek Manu Singhvi,learned Senior Counsel for the Respondent No.1, Mr. GopalSankaranarayanan, learned Senior Counsel for the Respondent No.3,EMr. Jaideep Gupta, learned Senior Counsel for the Respondent No.2,Mr. Rana Mukherjee, learned Senior Counsel for the Respondent No. 9and Mr. V. Giri, learned Senior Counsel for the Respondent Nos. 4 & 5.The impugned High Court judgment dealt with a project called thePalarivattom Flyover on the National Highway, Cochin City, State ofKerala. This was constructed by Respondent No.1 and inaugurated onF12.10.2016. However, after one year of this Flyover being used, theConsultancy Agency for the Ministry of Road Transport and Highways,Government of India, on regular inspection of the bridge, reported on16.03.2018 that the bridge was in a distressed condition with severalcracks as a result of which measures should be taken to rehabilitate theGflyover. The IIT, Madras, was thereafter appointed as an expert agencywhich delivered several reports in which, according to it, the bridge couldfollow a carbon fibre fabric composite treatment and be repaired insteadof being demolished. Meanwhile, Dr. E. Sreedharan submitted a reportto the Chief Minister of Kerala on 03.07.2019 in which he recommendedthe strengthening and replacement of RCC girders with PSC girders toH
ensure durability which would necessitate a demolition and re-constructionof the bridge. Dr. E. Sreedharan, by a report dated 14.09.2019, referredto the IIT reports and did not agree with the same, stating that if his planwas to be carried out, a 100 year guarantee would be given for thenewly constructed flyover.
3. Given these divergent streams of opinion, the State Governmentthen set up a High Level Committee consisting of five persons who areas follows:-
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1. Sri Ashok Kumar M. (Convenor) Chief Engineer, National Highways, Public Works Department Thiruvananthapuram
2. Sri S.Mano Mohan (Member) Chief Engineer, Bridges, Public Works Department Thiruvananthapuram
3. Sri M.N. Jeevaraj (Member) Chief Engineer (Rtd.), Public Works Department Thiruvananthapuram
4. Sri S. Saju (Member) Senior Bridge Engineer, Public Works Department Thiruvananthapuram
5. Sri S.M. Ashraf (Member) Senior Structural Engineer, Public Works Department Thiruvananthapuram
4. It will be noticed that apart from experts who were engineers,one of whom was a Senior Bridge Engineer, a Senior Structural Engineerof the PWD was also a member of this Committee. This Committeewent into the IIT reports and the Sreedharan report in some detail, afterwhich it concluded as follows:
“9. Conclusion
“a. The tests carried out by IIT Chennai are as per IS codes andIRC recommendations. IIT Chennai being a premier and reputed A
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institution, their findings can be accepted and relied on. However,a load test as specified in IRC 112:2011 has not been proposed byIIT Chennai. The reasons are not mentioned in their report. TheCommittee feels that since crack width in certain girders haveexceeded the allowable limits which is one of the compliancecriteria for load test, IIT might have decided that there is no pointin doing a load test before strengthening. However, IIT hasrecommended load test after strengthening the flyover. IIT hassuggested its scheme for strengthening the flyover, which again isas per IRC recommendations. But, IIT has not mentioned theservice life of the flyover after strengthening. IRC also does notrecommend service life of any structure after doing thestrengthening works proposed by IIT.
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b) As mentioned by Dr. E.Sreedharan a new construction withproper design, with quality execution of the work with qualitymaterials and strict technical supervision can expect a service lifeof 100 years.
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c) Construction cost of the proposal of demolishing and replacingof superstructure as proposed by Dr.E. Sreedharan will cost (18.71crores), more than double the cost estimated for the strengtheningscheme proposed by IIT (7.31 crores). The required completiontime for both cases is almost the same.
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d) Normally rehabilitation/strengthening are required for old aswell as distressed bridges having service life of 40 years or moreand also strengthening works are normally required for limitedmembers or locations of a flyover/bridge. In the case ofFPalarivattom flyover as per the findings of IIT Chennai, 97 RCCgirders out of 102 girders requires strengthening which is anextensive strengthening work for superstructure. Based on theall the above factors, Committee is of the opinion that consideringthe service life assured by Dr. E. Sreedharan for 100 years, it isbetter to accept the proposal by him.”
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5. The State of Kerala, by a G.O. dated 25.10.2019, examinedthis High Level Committee Report, and accepted it, stating as follows:
“6. Government have examined the whole matter in detail andhave decided to accept the recommendations of the TechnicalCommittee and to proceed accordingly.
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It is also decided to accept the letter of offer made by Delhi MetroRail Corporation to take over the bridge for rehabilitation as perletter read as 6[th] above. DMRC shall submit detailed item wiseestimate for approval of Government. On the basis of the detailedestimate, Finance Department shall allot funds in the appropriateHead of Account for the purpose. RBDCK will hand over thebridge site to DMRC free of all encumbrances.
7. RBDCK shall realize the loss sustained to the Governmentfrom the contractor in the light of the report of IIT Madras, reportof Dr. E.Sreedharan and the FIR filed in case No. 1/2019 ofMoovattupuzha Vigilance Court and as per the relevant provisionsof the agreement. RBDCK shall also initiate action against thecontractor for the lapses as per PWD Manual.
8. This order will be subject to the final decision of Hon’ble HighCourt in WP (C)s 25343, 25362 and 26405 of 2019.”
6. At this point, a Writ Petition was filed by the Respondent No.1in the Kerala High Court against the aforesaid G.O. By the impugnedjudgment, the Kerala High Court went into the terms, in particular, clause11 of the original tender between the contractor- Respondent No.1 andthe State, and then considered the various reports. The High Court alsonoticed that a vigilance enquiry had been conducted because there wereallegations that there was large scale corruption, and as part of it, a teamof experts from the Government Engineering College, Trichur reportedthat there are 2183 cracks on the girders out of which 99 cracks areabove 0.3 mm width and 83 cracks on pier caps out of which 5 cracksare about 0.3 mm width.
7. After considering the arguments of counsel appearing for allparties, including the Respondent No.3- KITCO, stating that a load testis extremely necessary for the purpose of ascertaining the strength ofthe flyover before anything further is done to it, the High Court concluded:
“19. There is no dispute about the fact that as per the terms ofcontract between the parties, load test is a requirement to beperformed to ascertain the strength of the bridge and to ensurethat it has the expected strength. According to the contractor,though certain cracks have developed in the girders, it needs onlyrepairs which the contractor is willing to do and it would not affectthe strength of the bridge in any way. A similar view had been A
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842SUPREME COURT REPORTS
Aexpressed by the consultant M/s KITCO as well. According tothem, the load test is mandatory to ascertain the strength of thebridge, and if the girders and platform are demolished, such anopportunity will be lost. The Government and its authorities arenot in favour of a load test since they feel that the aforesaid cracksitself are enough to arrive at a conclusion that those girders are toBbe demolished. Government had already taken a decision toremove the platform and girders. Once it is removed anddemolished, it may not be possible to ascertain the strength of thepresent structure, which may prejudicially affect the right of allthe stakeholders, including the Government. The contractor asCwell as the consultant still believes that the load test would provethat there is no requirement for demolishing the structure.Therefore, before demolishing the platform and the girders, it isbetter to have a load test conducted, to avoid any furthercontroversy in the matter. After conducting such load test, it shallbe open for the Government and its authorities to take a decisionDwhether they should proceed in accordance with the manner inwhich they have already decided or to take a different approachin the matter.
In the result, the following directions are issued.
E(i) That the Government shall conduct a load test of thePalarivattom flyover through an approved qualified agency capableof conducting such a test, with notice to all the stakeholders.
(ii) The entire expenditure for conducting the load test shall beborne by the petitioner in WP (C) No. 26030/2019.
F(iii) The entire process shall be completed within a period of threemonths or at an early date, as may be possible.
(iv) After conducting the load test, the Government shall file astatement before this Court along with the report of the concernedagency.”G8. Having perused the High Court judgment, what is clear is thatthe High Court, instead of applying the well-established parameters ofjudicial review and ascertaining whether the decision of the StateGovernment would violate Article 14, went into the matter itself andstated that it is better to have a “load test conducted to avoid any furtherHcontroversy in the matter”.
STATE OF KERALA & ANR.v. M/S RDS PROJECT LIMITED &ORS. [R.F. NARIMAN, J.]
9. Given the fact that an Expert Committee, which is a High levelCommittee of five experts was set up to go into the divergent opinions ofIIT Madras and Dr. E. Sreedharan, and the experts having come to aparticular conclusion, it is very difficult then to say that the Government,in accepting such Expert Committee Report, could be said to havebehaved arbitrarily. On this ground alone, we set aside the judgment ofthe High Court, as also the review judgment.
10. The appeals are allowed in the aforesaid terms.
11. The Writ Petitions that are pending in the High Court may bedisposed of within a period of six months from today.
Devika Gujral
Appeals allowed.
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