Gujarat High Court
Ajaybhai Riddishanker Joshi & 5 vs State Of Gujarat & 3....Opponent(S) on 5 September, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/WPPIL/31/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 31 of 2014
With
WRIT PETITION (PIL) NO. 56 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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AJAYBHAI RIDDISHANKER JOSHI & 5....Applicant(s)
Versus
STATE OF GUJARAT & 3....Opponent(s)
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Appearance:
MR KK TRIVEDI, ADVOCATE for the Applicant(s) No. 1 - 6
MR VANDAN BAXI, ASSTT.GOVERNMENT PLEADER for the Opponent(s) No. 1 - 1.2
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 5/09/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) Page 1 of 16 C/WPPIL/31/2014 CAV JUDGMENT
1. Since the issues raised in both these writ-applications are interlinked, those were heard together and are being disposed of by this common judgment and order.
2. By this writ-application in the nature of a Public Interest Litigation, the petitioners who are agriculturists, have raised an issue relating to the construction of embankment on the right side of the Tapi River as, according to the petitioners, the same would prove to be disastrous in the event of any natural calamity like flood.
3. The case made-out by the petitioners may be summed- up thus:
3.1 The petition has been filed in the larger public interest of the agriculturists owning and possessing their agricultural lands between the river Tapi and the proposed embankment.
The petitioners are owners/co-owners of the various parcels of land of the village Bhatpor, Ta: Choryasi, Dist: Surat, the details of those are mentioned below:
Petitioner No. Block No. Area in Sq. Mtrs.
1 565 4,755 485 7,790 495 14,164 558 4,654 2 520 2,833 3 662 6,576 664 607 665/P 9,713 666 7,284
4 857 2,225 801 607 Page 2 of 16 C/WPPIL/31/2014 CAV JUDGMENT 788 506 5 608/3 P 45,182 6 759/P 12,141 3.2 All the aforesaid lands are situated near the Tapi river. The petitioners learnt through a newspaper report published in "The Times of India" that the Central Design Organization of the Gujarat Government has decided to construct a 9 kms. long embankment on the right side of the Tapi river with a view to protect the people of Adajan, Pal and Rander villages of any natural calamity like flood.
3.3 According to the petitioners the newspaper report further stated that the Irrigation Department of the State of Gujarat was waiting for the Surat Municipal Corporation to hand-over to it the required land for the project to commence. The newspaper report further indicates that the Surat Municipal Corporation refused to acquire the private lands.
3.4 The Tapi embankment scheme had started as far back in the year 1970-72 and the required lands were already acquired upto the village Adajan for the aforesaid scheme and the embankment work was also completed from the village Kathor to Nehrubridge (village Adajan) along the right bank of the Tapi and from village Kathor to village Piplod along the left bank of the Tapi by the respondent nos.1 and 1.2.
3.5 The further construction of the Tapi Embankment Scheme from the boundaries of the village Adajan to the village Bhatpor (Ichchhapor) was not undertaken, and neither any land for the Tapi Embankment Scheme was ever acquired Page 3 of 16 C/WPPIL/31/2014 CAV JUDGMENT by the concerned authorities.
3.6 The map which has been annexed to the petition suggests that the proposed embankment does not run parallel to the river Tapi and the same is also not in continuity line of the existing embankment. Such discontinuity of the embankment would definitely create artificial logging/blockage of water in the agricultural fields of the petitioners, more particularly during flood/rainy season and more particularly, when there are number of buildings of various multinational companies like the L&T, Essar, Kribhco, NTPC, ONGC, Reliance in the downstream site of the lands.
3.7 According to the petitioners there is hardly a difference of 0.2 meters in the level of the lands of the petitioners and that of the property of the ONGC. The lands which belong to the companies are at the same level with that of the lands of the petitioners. The level was raised by soil filling by the concerned companies at the relevant time.
3.8 The State Government had constituted an Inquiry Commission in connection with the Surat Flood Disaster in the year 2006. The Commission published a detailed report dated 7th July, 2008 and the same was accepted by the State Government. However, the proposed embankment shown with a blue line in the map, Annexure-B is not in consonance with the recommendations of the Commission in its report. The proposed Embankment runs contrary to the recommendation Nos.25, 29, 30, 31, 32 and 33 of the report of the Commission. The Commission has specifically recommended to consider to Page 4 of 16 C/WPPIL/31/2014 CAV JUDGMENT acquire private lands as the Embankment would obstruct the free flow of the flood water and would result in a spillway in the event of flood and ultimately would get washed away or damaged. The Central Water Power Research Station, Government of India had also submitted its Technical Report No.4666 in October, 2009 wherein it was suggested in connection with the flood embankment scheme coupled with the river front development scheme to provide a minimum 2 to 4 lane concrete road on the embankment with proper sub grades.
3.9 According to the petitioners there is no proposal to construct embankment from the Nehrubridge upto Block Nos.327 of the village Bhatha. There would be a gap of about 6 Kms. from Nehrubridge to Block No.327 in which no embankment would be constructed. No expert could have taken such a decision.
3.10 The project is ultimately not going to be helpful to the people except the Contractors.
In such circumstances referred to above, the petitioners have prayed for the following reliefs :
"(A) Be pleased to admit this petition;
(B) Be pleased to issue writ in nature of mandamus appropriate writ, order or direction forbearing the respondent nos.1 and 1.2 from constructing the embankment as shown by marking blue line as per the Map as per Annexure-"B" hereto.Page 5 of 16 C/WPPIL/31/2014 CAV JUDGMENT
(C) Be pleased to issue appropriate writ, order or direction directing the respondent nos.1 and 1.2 to construct the Embankment parallel to/in continuity with and in the line of existing embankment along the river Tapi;
AND/OR ALTERNATIVELY (D) Be pleased to issue appropriate writ, order or direction directing the respondent nos.1 and 1.2 to construct embankment as proposed by the respondent nos.1 and 1.2 only after acquisition of the lands of the petitioners after following due process of law;
(E) Pending admission, hearing and final disposal of this petition, be pleased to grant interim / ad-interim relief restraining the respondent nos.1 and 1.2 from constructing the embankment as proposed along with blue line as shown in the Map (Annexure-B) of the Surat Urban Development Authority;
(F) Pending admission, hearing and final disposal of this petition, be pleased to grant interim / ad-interim relief directing the respondent no.2 to constitute a committee of experts to consider and to decide the pros and cons in constructing the embankment as proposed along the blue line as shown in the Map (Annexure-B) of the Surat Urban Development Page 6 of 16 C/WPPIL/31/2014 CAV JUDGMENT Authority;
(G) Be pleased to pass any such other and/or further order/s thought just and proper, in the interest of justice."
4. Stance of the Respondent No.2, Executive Engineer, Surat Irrigation Circle :
A) The petition in the nature of public interest litigation is not maintainable as the petitioners are personally interested in the litigation.
B) The petition has been filed under a serious misconception that the proposed embankment work is to be undertaken for the first time, but on the contrary, the embankment had already been constructed way back in the year 1972 and various parcels of agricultural lands were acquired at the relevant point of time. The Government has decided to construct different types of embankment to meet with the effect of natural calamities like flood.
C) According to the respondent, many constructions have come-up on the area which is essentially forming part of the river land and therefore, the embankment needs to be constructed and maintained according to the original and natural course of river.
D) As on today, the respondent is undertaking the work of reconstruction/strengthening of the embankment which is already constructed in accordance with the plans of the year Page 7 of 16 C/WPPIL/31/2014 CAV JUDGMENT 1972. It has been clarified that no proposed construction has been undertaken at present other than the one on the strength of the acquisition of land which had taken place long time back.
5. In the course of the hearing of this petition, our attention was drawn to the fact that the River Engineering Laboratory, a Government of India Undertaking, Central Water and Power Research Station situated at Khadakvasla, Pune, has given its Technical Report regarding the Mathematical Model Studies for prediction of flow in the Tapi river and also for design of flood embankments.
6. In such circumstances by our order dated 14 th March, 2014 we directed the State respondents to file an affidavit disclosing whether they were proceeding strictly in accordance with the report of October, 2009 of the River Engineering Laboratory or not. We also clarified in our order that if there was any deviation from the said report, the State respondent would justify the reasons for such deviation.
7. Pursuant to our order dated 14th March, 2014 referred to above, further affidavit-in-reply has been filed by the respondent no.2 inter alia stating as under :
"10. In view of the above mentioned development, it is stated that the report upon which the petitioner is relying upon is a comprehensive report regarding the mathematical model studies which was conducted in order to predict the flow of Tapi River from Ukai to Hazira Page 8 of 16 C/WPPIL/31/2014 CAV JUDGMENT with an intention of designing flood embankments. It is stated that the said report is divided into 19 different chapters of which chapter 17 is titled as "Analysis of result of Model Studies and discussions." It is stated that para 17.7 is a part of chapter 17 wherein a discussion of the Analysis of the results of running the Model studies has taken place extensively. It is stated hat chapter 17 contains only the discussion of the various results derived after conducting the various model studies. In one such discussions comes the discussion with regard to proposed flood embankment which, at the best of its interpretation, does not give any definite conclusive comments or observations with respect to the construction of embankment on the land in question much less the case of the petitioners.
11. It is further stated that the said report actually contains recommendations/suggestions in chapter 19 of the report. It is stated that the suggestions/ recommendations as contained in chapter 19 do not contain any observation or recommendation or suggestion which can substantiate the argument of the petitioner as contained in para 4.9.
12. It is further stated that the petitioner has relied upon para 17.7 of the said Oct. 2009 Report and has attempted to show that the State-respondents have deviated from the alleged suggestions made in the said para 17.7. It is stated that the petitioner is misleading the Hon'ble Court by stating so, inasmuch as para 17.7 contained in Chapter 17 of the Oct, 2009 report, contains Page 9 of 16 C/WPPIL/31/2014 CAV JUDGMENT discussion as to how the design of the "proposed flood embankment" should be, but the petitioner has failed to understand that the observations contained in para 17.7 are of no avail to the case of the petitioner since embankment has already been constructed way back since 1976. The contents of para 17.7 are pertaining to flood embankments proposed to be designed, and is not applicable to the present case since embankment has already been constructed at the site in question.
13. It is stated that para-17.7 itself refers to para 12 of the Oct, 2009 report, which, according to the facts of the present case, will be applicable. It is stated that Para 12 or the Chapter 12, contains the relevant discussion regarding the existing design of flood embankment. The very title of Chapter 12 and para 17.7 explains the difference that para 12 is pertaining to existing flood embankment design and para 17.7 is pertaining to proposed one.
14. It is further stated that para 12 of the said report, in very clear terms, explains that the existing alignment of embankment is found to be just and proper and it is only the height of the existing embankment which may be required to be increased. Para 12 nowhere states that the existing flood embankment is to be discarded or another embankment is required to be constructed. Upon proper appreciation of Para 12 and para 17.7, it becomes clear that the Oct '2009 report upholds the existing embankment designs in para 12 and states that for any proposed embankment, design discussed in para Page 10 of 16 C/WPPIL/31/2014 CAV JUDGMENT 12 should be considered. IT is amply clear that para 17.7 has no bearing in the present case since the flood embankment has already been constructed in the present case, way back since 1976, and according to para 12, the present embankment is just and proper and only the height is required to be increased, which the answering respondent has already clarified in the earlier affidavit.
15. It is stated that considering the above, it is the humble submission, that the State respondent has not deviated from the contents of the Oct '2009 report, but on the contrary has been complying with its true construction and interpretation and the allegation of the petitioner is false, baseless and misleading, made only with an intention to secure attention and sympathy of the Hon'ble Court. The petitioner has been making consistent false and misleading allegations and now the Hon'ble Court may appreciate the whole matter in view of such facts.
16. Even otherwise, constructions or designing of embankments is a highly technical issue as various scientific and mathematical studies are conducted before arriving at any conclusion. Any change in such designs, as per the wishes of the petitioners, has a risk of playing with the forces of the nature, as a slight change at one point will disrupt the whole mathematical and scientific studies and data and consequently, it may lead to disastrous flooding in unanticipated areas, resulting into loss of lives and properties. The studies have been Page 11 of 16 C/WPPIL/31/2014 CAV JUDGMENT conducted in such a way that the damage or risk is minimized in case of any flood."
8. Thus, the stance of the State respondent is that the plans and designs for the construction of the embankments have been finalised after undertaking highly technical, scientific and mathematical studies and each of such embankments have been placed in a position with each other. At this stage, if any change is effected in the design of one embankment, then the same would result in disruption of all the scientific and mathematical studies undertaken so far, and would also disrupt the flow of flood water and may lead to unforeseen devastating consequences.
9. 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 State Government to construct embankment on the river Tapi at Surat deserves to be condemned for the reasons assigned by the petitioners.
10. 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, (2002) 2 SCC 333, the Supreme Court observed in Page 12 of 16 C/WPPIL/31/2014 CAV JUDGMENT 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 v. Union of India (AIR 1996 SC
11) (supra), 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 Page 13 of 16 C/WPPIL/31/2014 CAV JUDGMENT 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 v. Union of India, (2003) 4 SCC 289: (AIR 2003 SC 1344), 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.
11. We may only say that after an extensive study and based on the opinion of the experts, the State Government has taken the decision to construct embankment on the river Tapi. How to construct an embankment or where to construct an embankment, 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 an embankment. We do not possess the engineering expertise in the field of an embankment 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 petitioners or the public at large has been violated or infringed so as to maintain this petition.
Page 14 of 16 C/WPPIL/31/2014 CAV JUDGMENT12. At this stage, it will be profitable for us to refer to a recent pronouncement of the Supreme Court in the case of Union of India Vs. Dr. Kushala Shetty and others, reported in AIR 2011 SC 3210, wherein the Supreme Court, while dealing with the subject of construction and maintenance of National Highways, 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."
13. For the foregoing reasons, we do not find any merit in these petitions and the same are accordingly rejected. No Page 15 of 16 C/WPPIL/31/2014 CAV JUDGMENT costs.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 16 of 16