Gujarat High Court
Ullasba Mahavirsinh Barach vs Union Of India & on 22 March, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
ULLASBA MAHAVIRSINH BARACHV/SUNION OF INDIA C/WPPIL/109/2011 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 109 of 2011 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 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 ?
================================================================ ULLASBA MAHAVIRSINH BARACH & 1....Applicant(s) Versus UNION OF INDIA &
3....Opponent(s) ================================================================ Appearance:
MR HASHIM QURESHI, ADVOCATE for the Petitioners MR PK JANI, GP with MR KRINA CALLA, AGP for the Respondent No. 3 MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 1 NOTICE SERVED BY DS for the Opponent(s) No. 2 SINGHI & CO, ADVOCATE for the Opponent(s) No. 4 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/03/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this petition under Article 226 of the Constitution of India, in the nature of a Public Interest Litigation, the petitioners, the Sarpanch and the Deputy Sarpanch respectively of Luni Gram Panchayat have prayed for the following relief.
(A) This Hon'ble Court may be pleased to issue a writ of mandamus, writ in the nature of mandamus directing the respondents to provide the bridge on the river Khari of village Luni of Mundra Taluka, Dist: Kutch where the respondent No.4 has been commissioning/laying the private Railway Tracks and be pleased to hold that not providing the bridge on a river but constructing the bridges on the Nalas is the discriminatory and illegal act on the part of respondent No.4 and violate of Article 14 of the Constitution of India. Hence, the respondent Nos.1 to 3 may be directed to discharge their lawful duties to see that the respondent No.4 may carry out the development as per approved plans and may provide the bridge on the river as the bridges are provided on the Nalas viz. Kapadiawala Chhela and Kheriawala Chhela in the same village.
(B) This Hon'ble Court may be pleased to direct the respondents to provide the Under-bridge on the crossing commonly known as Hamira Mora in village Luni, Tal: Mundra, Dist: Kutch.
(C) This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, direction and order setting-aside the act on the part of the respondent No.4 constructing the Pakka Wall across the village Luni against the provisions of law instead of covering the land by fencing, after holding the same as an illegal and unconstitutional act and direct the respondent Nos.1, 2 and 3 to see that such Pakka construction is removed.
During the pendency and final disposal of this petition, the respondent No.4 may be restrained from carrying-out further construction work on Khari river of village Luni, Tal: Mundra, Dist: Kutch and be pleased to post the Guard on the crossing to avoid any calamity;
(E) Any other and further relief/s, looking to the contents of the petition and which are in the interest of village people, as the Hon'ble Court may deem just and proper, may please be granted. The petitioners crave leave to add any further prayer/s, if required in the public interest.
2. Case of the petitioners:-
2.1 The petitioner No.1 is the Sarpanch and the petitioner No.2 is the Deputy Sarpanch of Luni Gram Panchayat, Dist: Kachchh. According to the petitioners, the legal and unconstitutional act on the part of the respondent No.4 by obstructing right of way and the flow of the river has necessitated the filing of the present petition in public interest. According to the petitioners, the respondent No.4 has developed a port at Mundra and is running it since 1998. A railway line connecting the nearest railway station, - Adipur with Mundra was laid for connectivity between the port and the railway station for transportation of cargo, which is being imported and exported through the Mundra Port.
2.2 The respondent No.4 accordingly had applied with the Collector, Kachchh Bhuj for allotment of the land for construction of 57 km railway line from Mundra to Adipur.
2.3 In the year 1997, the Ministry of Railways permitted the respondent No.4 to construct and maintain railway siding from Mundra to Adipur.
2.4 According to the petitioners, the respondent No.4 decided to double the 57 km railway line between Mundra and Adipur so as to enhance the handling capacity per day by providing the broad gauge track line parallel to the earlier railway line. For the purpose of laying a double railway line, large parcels of land have been allotted in favour of the respondent No.4 by the State Government subject to certain terms and conditions. One such condition according to the petitioners is that the respondent No.4 shall not raise any fencing beyond the height of 105 cm (3.5 feet) and as per condition No.35 before undertaking any construction work for the said railway line, the respondent No.4 shall have to obtain prior permission from the Luni Gram Panchayat.
2.5 According to the petitioners, inspite of specific conditions as contained in the order of allotment of the land passed by the Collector, Kachchh Bhuj, the respondent No.4 has failed to obtain any permission from the Luni Gram Panchayat before laying down the railway track nor has obtained any permission for construction of the fencing. It is alleged that over and above the existing fence, the respondent No.4 is constructing a pakka concrete wall of a height more than what has been prescribed under condition No.32 of the order dated 25th August, 2004.
2.6 It is also the case of the petitioners that in a meeting with the villagers, the respondent No.4 had given assurance that there shall not be any obstruction to the flow of water of the river Khari passing through the village to the Gulf of Kachchh and a bridge would also be constructed on the same, but the respondent No.4 instead of providing a bridge on the river, has just laid down some cement pipes of one mtr width, as a result of which, the passage of the river has become narrow. According to the petitioners, this act on the part of the respondent No.4 has put the entire village at a risk of some natural calamity.
2.7 It is also the case of the petitioners that ordinarily, a fence is erected of iron wires fitted with steel angle attached to the land.
However, the respondent No.4 is intending to construct a pakka concrete wall in gross violation of the condition of NA permission and the provisions of the Bombay Land Revenue Code as well as the Gujarat Panchayats Act.
2.8 The petitioners in their capacity as Sarpanch and Deputy Sarpanch of the village Gram Panchayat requested the respondent No.4 to seek appropriate permission from the Gram Panchayat before undertaking the work of construction. However, the respondent No.4 has declined to seek any such permission relying on the provisions of section 11(2) of the Gujarat Special Economic Zone Act, 2004.
2.9 It has been suggested by the petitioners that the respondent No.4 should construct a bridge on the river with a view to see that the natural flow of the water is not obstructed during the monsoon season. The river bed is being used by the agriculturists for grazing of their cattle as well as for the purpose of cultivation. According to the petitioners, the river is being used as a passage to travel to the respective fields since the time immemorial and the construction will not only obstruct the natural flow of the river, but will also close the passage and the right of way of the public at large.
2.10 It is also the case of the petitioners that after the construction of the railway line, there is no connectivity of village Luni with the adjacent villages except by way of a passage/path/way, which is commonly known as Hamira Mora (falling between survey Nos.272 and 277) the place, where the respondent No.4 has provided an unmanned crossing.
2.11 According to the petitioners, the respondent No.4 is obliged to construct 99 bridges as per the project. The respondent No.4 has provided the bridge on a Nala known as Kapadiawala Chhela and has also provided the same concrete girder slab bridge on another Nala, namely, Kheriawala Chhela , as in between two Nalas, the respondent No.4 has constructed the station and with a view to safeguard the station, a bridge has been provided on the Nalas having the width of about 22 to 30 mtr. The river Khari having the width of 200 mtr has not been provided with a bridge, but a drainage line has been constructed, which according to the petitioners, will not only obstruct the flow of water, but could cause problems similar in the nature as the one that had cropped up in the year 2003.
3. Stance of the respondent No.4:-
3.1 According to the respondent No.4, they were earlier known as the Gujarat Adani Port Limited. The respondent was jointly promoted by the Adani Port Limited and Gujarat Port Infrastructure Development Company Limited (GPIDCL). The GPIDCL is a company promoted by the Gujarat Maritime Board and the Gujarat Industrial Investment Corporation for development of selected ports in the State of Gujarat with private sector participation.
3.2 The respondent has developed a port at Mundra and is running it since 1998. The respondent has entered into a concession agreement dated 17th February, 2001 with the Government of Gujarat and the Gujarat Maritime Board for the development and operation of the port at Mundra under the Build Own Operate and Transfer (BOOT) policy of the Government of Gujarat. The concession agreement is governed by the provisions of the Gujarat Infrastructure Development Act, 1999.
3.3 According to the respondent, it decided to double the 57 km railway line between Mundra and Adipur so as to enhance the handling capacity per day by providing broad gauge track line parallel to the earlier railway line (the new railway line). Consequently, a plan was prepared for the respondent by a consultant approved by the Western Railway Authorities for construction of a 57 km new railway line parallel to the original railway line. The respondent, based upon the plans prepared and approved by the Western Railway Authorities, commenced the construction of a parallel new railway line and so far has been able to complete a stretch of 20 km. According to the respondent, while part of the railway corridor and about 15 km between Mundra and Adipur is surrounded by the SEZ area, about 42 km is in the nature of a station alone corridor, where the land outside the corridor is not a part of the SEZ. The railway corridor passing at Luni village is in the nature of such station alone corridor.
3.4 According to the respondent, for the purpose of doubling the railway line, the extension of the original bridge was essential and therefore, on the basis of the plans, which have been approved by the Western Railways for the new railway line, the construction of a new bridge No.63 of RCC pipe, exactly identical and adjoining to the original bridge was undertaken. Accordingly, the respondent has constructed the new bridge in accordance with the plans and drawings prepared by the consultant approved by the Western Railway authorities.
3.5 The respondent has denied that there would be obstruction to the flow of the water of the river much less accumulation of the water near the bridge No.63. According to the respondent, the original bridge and the new bridge both have 130 RCC pipes of 1.2 mtr diameter, and no purpose would have been served by constructing a new bridge with different specifications.
3.6 The respondent has further clarified that the Special Economic Zone Rules, 2006 requires the processing area and Free Trade and Warehousing Zone to have specified entry and exit points and need to be fully secured by such measures as approved by the Board of Approval. The respondent has constructed and is constructing a wall as a boundary consistent with the Rules and the guidelines of the Government of India issued in that regard. Such boundary wall is being built parallel to the railway lines forming the railway corridor, so as to fully secure the area of the SEZ and to prevent accidents, encroachments and stray cattle/ animals from being run over by trains.
3.7 The land outside the railway corridor is not a part of the SEZ, thereby necessitating construction of such boundary wall so as to secure the SEZ area. According to the respondent, so far as permission is concerned, the entire area including the survey No.342 of village Luni, which is the subject matter of adjudication in this petition, where the new railway line, the walls and the fencing is being constructed, are part of this SEZ as notified by the Government of India under various notifications. Once the subject area is declared as SEZ by virtue of notification, the area of the zone ceases to be under the jurisdiction of local authorities and consequently, no permission from the municipal Corporation or municipal council or Nagar Panchayat or Gram Panchayat is necessary.
4. Submissions on behalf of the petitioners:-
4.1 Mr. Hashim Qureshi, the learned advocate appearing with Mr. Ekrama Qureshi for the petitioners vehemently submitted that under section 13 of the Gujarat Special Economic Zone Act, 2004, it is the duty of the development committee to ensure that the units and the residents have access to the basic essential infrastructure, facilities and amenities, namely public street, bridges, sub-ways, culverts, cause ways etc. According to Mr. Qureshi, in view of section 14 of the Act of 2004, it shall be the responsibility of the developer to construct, install, manage, operate the infrastructure facilities. In such circumstances, the respondent No.4 is obliged to provide the bridge on the river, which will be consistent with the provisions of the Act. According to Mr. Qureshi, instead of providing a bridge, the respondent No.4 has laid down drainage pipelines and thereby, converted the river into a sewage like Nala.
Such an act of the respondent No.4 could endanger the lives of the people of the village.
4.2 Mr. Qureshi also vehemently submitted that the action on the part of the respondent No.4 in constructing a pakka concrete cement wall would also cause grave injustice to the villagers as they will not be in a position to enjoy their right of way or usage as they have been enjoying since time immemorial. According to Mr. Qureshi, the connectivity of the village will be cut off from the rest of the villages and the construction of a wall would cause problems in monsoon, as the same will block the flow of the water and ultimately, the water will take its course into the village.
4.3 Mr. Qureshi further submitted that after the construction of the fence and laying down of the railway track, the only passage available with the villagers to reach other villages for their day-to-day business activities is the passage commonly known as Hamir Mora , but such passage is also blocked by the railway track by providing an unmanned crossing. According to Mr. Qureshi, the respondent No.4 should be directed to provide an under bridge at the said crossing.
4.4 Mr. Qureshi submitted that the respondent No.4 had promised to the villagers that they would construct a small bridge over the river Khari having a width of about 200 mtr. However, the respondent No.4 instead of constructing a bridge, has simply laid down the cement pipes, which by passage of time, will be filled up with sand and would block the flow of the water.
4.5 Mr. Qureshi laid much stress on the fact that the action on the part of the respondent No.4 is not only contrary to the conditions imposed, but the same is in violation of the provisions of the law, more particularly, the provisions of the Bombay Land Revenue Code.
4.6 According to Mr. Qureshi, although the respondent No.4 has been allotted the land for a special purpose, the provisions of the Bombay Land Revenue Code could not be ignored. Mr. Qureshi submitted that the reliance placed by the respondent No.4 on the provisions of section 11 of the Act of 2004, which provides that notwithstanding anything contained in any other law for the time being in force, the area of the zone ceases to be under the jurisdiction of any municipal Corporation or municipal council or Nagar Panchayat or Gram Panchayat or the notified area constituted under the State laws is without any merit, as the same is contrary to the provisions of Article 243-Q and other provisions under part IX of the Constitution of India.
4.7 Mr. Qureshi, in such circumstances referred to above, prays to allow this petition and grant the relief, as prayed for in the petition.
5. Submission on behalf of the respondent No.4:-
5.1 Mr. Mihir Thakore, the learned senior advocate appearing for the respondent No.4 vehemently submitted that the petition raises several disputed questions of fact and therefore, should not be entertained.
Mr. Thakore submitted that this petition though filed in the nature of a Public Interest Litigation, but the same is a frivolous litigation as it seeks to procure undue advantages or private benefits for themselves, which would otherwise not be available to them in law.
5.2 Mr. Thakore submitted that his client has made huge investment to the tune of approximately Rs.9222 crore as on 31st October, 2011, which includes setting up of multi-nodal connectivity like road, sea port, rail as well as container terminals, power generation, transmission and distribution network and water distribution networks, social infrastructure facilities like construction of residential buildings, schools, colleges, hospitals, entertainment, sports and recreational facilities of world class standards. According to Mr. Thakore, thousands of persons are directly or indirectly working for his client and the development of the SEZ is an ongoing process and further investments are being contemplated in future.
5.3 Mr. Thakore laid stress on the fact that the decision to double the 57 km railway line between Mundra and Adipur had to be taken considering the growing demand at the Mundra port so as to enhance the handling capacity per day by providing the broad gauge track line parallel to the earlier railway line. Consequently, a plan was prepared for the respondent by a consultant approved by the Western Railway Authorities for construction of a 57 km new railway line parallel to the original railway line. According to Mr. Thakore, the construction is according to the plans, which have been sanctioned by the railway authorities and the railway authorities have also visited the site for the purpose of inspection.
5.4 Mr. Thakore submitted that considering the provisions of the Railway Act, 1989, entrance into any part of railway without any lawful authority is a punishable offence and hence, the submission of the petitioners that construction of a compound wall along the railway line in question would hamper the right of way of the villagers is without any merit. Mr. Thakore has relied on the provisions of section 147 of the Railways Act, 1989.
5.5 Mr. Thakore reiterated his submissions that his client being a Special Economic Zone ceases to be under the jurisdiction of municipal Corporation or municipal council or Nagar Panchayat or Gram Panchayat etc. as per the provisions of section 11 of the Act of 2004.
5.6 Mr. Thakore, in the circumstances referred to herein above, prays that there being no merit in this petition, the same be rejected.
6. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that arises for our consideration in this petition is, whether the petitioners are entitled to any of the reliefs prayed for in this Public Interest Litigation.
7. Ordinarily, the Court would allow litigation in public interest if it is found:
That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
That such person or group of persons is not a busybody or a meddlesome interloper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
That the process of public interest litigation was not being abused by politicians or other busybodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
That the person approaching the Court has come with clean hands, clean heart and clean objectives;
That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busybody or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.
8. It appears from the materials on record that the Ministry of Commerce, Government of India granted a formal approval in favour of the respondent No.4 for setting up of a multi-product SEZ at Mundra on 12th April, 2006. An area of 6472.86 hector was notified by the Ministry of Commerce on various dates from 23rd June, 2006 to 27th May, 2009. Pursuant to the said notification, the entire railway line of 57 km and the land adjoining thereto forming the railway corridor between Mundra and Adipur has become part of the SEZ area. Considering the growing demand at Mundra port, the respondent No.4 decided to lay a parallel railway line between Mundra and Adipur. Consequently, a plan was prepared for the respondent No.4 by a consultant approved by the Western Railway authorities for construction of such railway line parallel to the original railway line. There is no dispute to the fact that the respondent No.4 has already commenced the construction of the new parallel railway line and has completed a stretch of about 20 km in accordance with the plans approved by the Western Railway authorities.
Although Mr. Qureshi has tried to convince us that the act of the respondent No.4 in constructing a 1.8 mtr high concrete wall plus 0.6 mtr barbed wire fencing on the railway corridor parallel to the new railway line, will cause lots of problems to the villagers as the same would cause obstruction, but we are not impressed by such submission of Mr. Qureshi. There is nothing on record to show that such an act is contrary to the provisions of the Act and at the same time, it could also not be said that any fundamental or any other legal rights of the villagers could be said to have been infringed or violated.
9. Having regard to the materials on record and the nature of the controversy, we are of the opinion that the petitioners have raised technical issues requiring expertise in the field of engineering. This Court has no such expertise to answer and decide questions like what type of bridge should be constructed or at which place it should be constructed. We are convinced by the fact that the construction, which has been undertaken by the respondent No.4 is according to the plans which have been sanctioned by the authorities.
10. In this context, we may quote with profit a very recent pronouncement of the Supreme Court in the case of Union of India Vs. Dr. Kushala Shetty and others, AIR 2011 SC 3210. In this case, the Supreme Court was dealing with the matter relating to the acquisition of land for National Highway Authority of India. The Supreme Court while deciding the matter sounded a note of caution that ordinarily, the Court should not interfere in matters requiring technical expertise. The Court made the following observations, which, in our opinion, are very apt so far as the facts of the present case are concerned.
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 ex-facie 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.
11. We are also not impressed by the submission of Mr. Qureshi that the respondent No.4 is obliged to obtain necessary permission from the local Gram Panchayat before commencing the work of construction. Our attention has been drawn by Mr. Thakore, the learned advocate appearing for the respondent No.4 to the provisions of section 11 of the Act, 2004. Section 11 reads as under:
11.
Zone to be industrial township:-
(1) Every zone, having regard to the municipal services proposed to be provided in the area of the Zone and such other factors, shall be deemed to be an industrial township area under the proviso to clause (1) or Article 243Q of the Constitution of India.
(2) Notwithstanding anything contained in any other law for the time being in force, the area of the zone shall cease to be under the jurisdiction of any municipal Corporation or municipal council or Nagar Panchayat or Gram Panchayat or the notified area constituted under the State laws.
12. Plain reading of clause (2) of section 11 would suggest that the area of Zone as referred to clause (1) shall cease to be under the jurisdiction of any municipal Corporation or municipal council or Nagar Panchayat or Gram Panchayat or the notified area constituted under the State laws. Although, Mr. Qureshi made an attempt to convince us that the plea raised by the respondent No.4 as regards section 11 of the Act of 2004 violates concept of Article 243Q of the Constitution of India, but we are not impressed by such submission for the simple reason that there is no challenge in this petition to the constitutional validity of section 11 of the Act, 2004. We have read the section 11 of the Act, 2004 as it is and on plain reading of section 11, we are convinced that the contention of the petitioners that the respondent No.4 have not obtained requisite permission from the local Gram Panchayat does not appeal to us.
13. We may only say that if the petitioners have any grievance to redress as regards railway crossing is concerned, then, it shall always be open for the petitioners to bring their difficulties to the notice of the railway authorities, who have sanctioned the plans and have granted the permission to the respondent No.4.
14. The respondent No.1 Development Commissioner, Special Economic Zone has also filed an affidavit stating that the main function of the office of the Development Commissioner, SEZ is to ensure that the activities carried out by the developer within the notified area of SEZ is in accordance with the authorized operations approved by the Board of Approval. It has been further stated in the Affidavit-in-reply that no case of violation of any specific Government Acts, Rules, Regulations or policy by the developer had been brought to the notice or knowledge of the office of the Development Commissioner, for which the Development Commissioner could take action. It has also been clarified that the SEZ was being developed according to the SEZ Act and the Rules.
15. We are of the opinion that none of the fundamental rights or any other legal rights of the petitioners or persons for whom the petitioners are espousing the cause could be said to have been violated so as to warrant any interference in this petition and grant the relief as prayed for in public interest. We are of the view that we should not undertake a fishing or a rowing inquiry on such technical subjects in exercise of our powers under Article 226 of the Constitution of India.
16. 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.
17. In Balco Employees Union (Regd.) vs. Union of India and others, (2002) 2 SCC 333, 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.
18. 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.
19. 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.
20. 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 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 wednusbury principle of reasonableness and should be free from arbitrariness, bias or mala fide but otherwise the Court should not interfere with such decision.
21. 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.
22. The matter could also be looked at in a different way. Let us assume that some inconvenience or hardship is likely to be caused to the petitioners and the general public of the village due to construction of a wall or a fencing parallel to the railway track, even then, the petitioners are not entitled to any relief on the principle of 'Damnum Sine Injuria'.
23. The rule of law is that the exercise of an ordinary right is no wrong even if it causes damage. This legal maxim is based on the principle of law that as a price of our free action, which the law permits, the other person must abide by some measure of inconvenience from equal freedom of one's neighbour. This is what the phrase 'damnum sine injuria' means. This is a case of 'damnum sine injuria' a case where damage or loss is inflicted without the act being unlawful. It is an act though harmful to the petitioner is not wrongful on the part of the respondent, and no right of action accrues to the petitioner.
24. For the reasons aforestated, we find no merit in this petition and accordingly, the same is hereby rejected. However, in the facts and circumstances of the case, no order as to costs.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) FURTHER ORDER After this order is passed, Mr. Qureshi, the learned advocate appearing on behalf of the petitioners prays for leave to appeal to the Supreme Court.
In view of what has been stated above, we find no reason to grant such leave. Prayer refused.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) shekhar Page 21 of 21