Gujarat High Court
Chief vs Kanuji on 19 April, 2011
Author: Chief Justice
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/97/2011 22/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 97 of 2011
In
SPECIAL
CIVIL APPLICATION No.26834 of 2007
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
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 ?
=========================================================
CHIEF
GENERAL MANAGER (TOLL) AHMEDABAD RING ROAD INFRASTRUC - Appellant(s)
Versus
KANUJI
GABHAJI THAKORE & 3 - Respondent(s)
=========================================================
Appearance
:
MR
NAVIN K PAHWA for
Appellant(s) : 1,
MR DR BHATT for Respondent(s) : 1,
GOVERNMENT
PLEADER for Respondent(s) : 2,
MR PS CHAMPANERI for Respondent(s)
: 3,
MR HS MUNSHAW for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 11/04/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The appellant - original respondent no.4 has preferred this Appeal under clause 15 of the Letters Patent challenging the judgment and order passed by the learned Single Judge dated 5th August 2010 disposing of the above referred writ petition preferred by the original petitioner, an agriculturist, with appropriate directions which, according to the appellant herein, are not in accordance with law.
The present Appeal arises under peculiar set of facts and if the appellant is aggrieved by the order of the learned Single Judge then to a considerable extent the appellant himself is responsible for the same. We may summarize few facts relevant for the purpose of deciding the present Appeal :-
The original petition was preferred by one agriculturist residing near Ring Road, Toll Tax Booth at and post Ramol, District Ahmedabad with the following prayers:-
"(a) Your Lordships be pleased to issue an appropriate writ, order or direction directing the State Government and AUDA to make the payment of compensation to the petitioner and to all the agriculturists, whose lands have been acquired for the purposes of construction of Sardar Patel Ring Road by AUDA from the vicinity of villages around the city of Ahmedabad.
(b) Your Lordships be pleased to issue an appropriate writ, order or direction directing the State Government and AUDA to provide the facilities to the petitioner and other agriculturists, which are required to be provided upon implementation of T.P.Scheme, which has come into existence upon and for construction of Sardar Patel Ring Road in the interest of justice.
(c) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing that the respondent no.4 has no authority in law to levy toll tax from the local public/traffic for passing through the Sardar Patel Ring Road in the interest of justice."
It appears that the grievance of the petitioner was two-fold. Firstly, his land came to be acquired by Ahmedabad Urban Development Authority (for short, 'AUDA') for the purpose of construction of Ring Road and, for which, AUDA was not allotting alternative plots in lieu of the land which was acquired for the purpose of construction of Sardar Patel Ring Road. Second grievance was to the effect that AUDA has not constructed service road, as a result of which, the petitioner and similarly situated villagers residing in the surrounding areas of the Toll Tax Booth have to pass through the toll tax booth after paying the toll tax. The grievance was that the petitioner and similarly situated other persons who are residing in the neighbouring areas of the toll tax booth are not obliged to pay the toll tax as they have to pass through that route every day for the purpose of employment, etc. So far as the first grievance of the original petitioner is concerned, the appellant herein has nothing to say because that relates to allotment of alternative plot in lieu of the land which is acquired for the purpose of construction of Sardar Patel Ring Road. However, the appellant is aggrieved by the order of the learned Single Judge as contained in paragraph 3 of the judgment. Paragraph 3 of the judgment and order passed by the learned Single Judge is reproduced hereinbelow :-
"3. So far as the prayer in terms of para 8(b) is concerned, it is submitted that AUDA has proposed construction of service road for people like petitioner and others so that they are not required to pay any toll tax. He has produced on record the communication dated 18.12.2009 signed by the Executive Engineer, AUDA, Ahmedabad as well as Deputy Executive Engineer, AUDA, Ahmedabad submitting that a 25 km service road is to be prepared on both sides of the Sardar Patel Ring Road, which is likely to cost Rs.36.65 Crores and the same would be on Ramol Junction to N.H. 59 Odhav Junction (10.70 km) as well as Silaj Bridge Junction to Sanand Highway Junction (14.30 km) and that construction of the service road on the aforesaid roads is likely to start from April 2010 and the same can be completed by March 2012. The aforesaid communication dated 18.12.2009 signed by the Executive Engineer, AUDA, Ahmedabad as well as Deputy Executive Engineer, AUDA, Ahmedabad is directed to be taken on record and respondent No.3 and all other connected authorities connected with the work of providing service road on the aforesaid roads to construct the service road on the aforesaid roads i.e. Ramol Junction to N.H. 59 Odhav Junction (10.70 km) as well as Silaj Bridge Junction to Sanand Highway Junction (14.30 km) on or before March 2012 and to place the compliance report before this Court in the present Special Civil Application."
It is evident from plain reading of paragraph 3 of the impugned judgment and order that learned Single Judge took notice of the fact and recorded that 25 kms service road is to be prepared on both sides of the Sardar Patel Ring Road at the estimated cost of Rs.36.65 crores and the same would be on Ramol Junction to National Highway 59 Odhav Junction (10.70 kms) as well as Silaj Bridge Junction to Sanand Highway Junction (14.30 kms) and that the construction of the service road on the aforesaid roads is likely to start from April 2010 and the same can be completed by March 2012. After recording this, the learned Single Judge proceeded to issue directions to the respondent to undertake the work of construction of service road and see to it that it is completed on or before March 2012 and, thereafter, place the compliance report before the Court.
Learned counsel for the appellant submits that the learned Single Judge ought not to have issued such directions to the respondents, more particularly, AUDA, as they are prejudicial to the interest of the appellant. Counsel submits that a person travelling through service lane, which is also connected with the Highway, can cross the toll gate through the service lane, and if persons are allowed to cross, it will cause loss to the exchequer of the appellant as those who are travelling on the Highway would take circuit route through the service lane to avoid toll gate. Counsel would further submit that the directions issued by the learned Single Judge are of such a nature that AUDA is now left with no other option but to construct service road, and at any cost, the appellant does not want that there must be service road.
We inquired with the learned counsel appearing for the appellant that why objection was not raised at the relevant point of time when these directions were being issued by the learned Single Judge, if at all such directions were prejudicial to the interest of the appellant defeating their legal rights, if any. To this, there is no satisfactory reply. On the contrary, in paragraph 3 of the appeal memo, it has been stated that after the directions were issued by the learned Single Judge, the appellant deputed its senior officers to have meeting with AUDA and requested AUDA to move appropriate application before the learned Single Judge for recalling the directions contained in paragraph 3 of the judgment. However, these steps were also not undertaken by the appellant.
Learned counsel for the appellant would also submit that the Sardar Patel Ring Road is a Build, Operate and Transfer (BOT) basis project. As per the BOT system, the contractor makes investment to construct the road. The amount so invested is recovered from collection of toll fees from the road users during the concession agreement period. The bidders conduct the survey of traffic which is likely to use the proposed road and make the bid on the basis of estimate of generation of toll fee collection.
It is submitted that based on the estimate of recoverable revenue, the bidders submit the bids and, thereafter, a concession agreement is executed between the successful bidder and the authority under which the contractor is given the right of collection of toll fees from the road users for a fixed number of years. It is submitted that the bid of the appellant was found to be successful and accordingly, a concession agreement came to be signed between the appellant on the one hand and AUDA on the other hand on 7th September 2006 for the work of improvement and widening of four lane of existing two lane Sardar Patel Ring Road around Ahmedabad city on BOT basis. It is also submitted that during pre-bid meetings, it was discussed between the parties that if service roads are provided, it will not make the project viable. It is also submitted that AUDA agreed to omit the provision of service road.
Per contra, it is submitted on behalf of the respondent no.4 that the decision of laying down service road was in the interest of public at large and, more particularly, for the local public of the surrounding villages.
Respondent no.4, in its affidavit-in-reply, has explained as to how appropriate decisions were taken from time to time and what were those decisions. The relevant paragraphs of the affidavit-in-reply, namely, paragraphs 4, 5, 6, 7, 8, 9 and 10 are as under:-
"4.The respondent No.4 most respectfully states that the Ring Road having length of 76.35 kms. Known as Sardar Patel Ring Road was proposed in the month of August, 1999. Later on it was decided to construct the said Ring Road by way of inviting tenders of Build, Operate and Transfer (BOT) basis and the estimated cost of the said project was Rs.410 crores. It is submitted that as once a decision was taken by the Board of Members of Ahmedabad Urban Development Authority in this regard, it was thought fit to invite tenders by way of issuing public notices in various newspapers dated 16/12/2005 and the said public notice was also made available on website. It is pertaining to note that M/s.Sai Consulting Engineers Pvt. Limited was appointed as independent consultant for execution of the said project and it had prepared and submitted draft tender papers on 04/02/2006. The said draft tender papers were approved by the then Chairman of Ahmedabad Urban Development Authority on 07/04/2006 and in all 14 contractors collected the tender forms after depositing Rs.50,000/- per tender form. It is most respectfully stated that in the schedule under Section-2, Volume-II of Bid Documents under draft tender papers provided for service roads. The respondent No.4 further states that Clause-2.3 (Page-5) lays down that service road shall be provided on either side of the main carriage way in built up area or has to provide civil movement of local traffic without disturbing through traffic and a copy of relevant portion of the Schedule-B is annexed herewith and marked as Annexure-A. From kind perusal of Clause-2.3, it would be clear to this Hon'ble Court that various other details were also provided with regard to service roads. The respondent No.4 at this stage makes it clear that as per the said bid-documents, service road was required to be constructed by the Bidder.
5.The respondent No.4 humbly states that a Pre-Bid meeting of the bidders was held on 17/04/2006 and during the meeting the officers of Ahmedabad Urban Development Authority had provided some clarifications relating to the project and the said clarifications were with regard to service road also and a copy of the Minutes of the meeting duly signed by the Chairman of Ahmedabad Urban Development Authority on 18/04/2006 is annexed herewith and marked as Annexure-B. The respondent No.4 craves leave to draw kind attention of this Hon'ble Court to Note-1 through which Ahmedabad Urban Development Authority had provided some clarifications relating to the project. It is submitted that the said clarification categorically is with regard to service roads remaining length of the project road to be provided by Ahmedabad Urban Development Authority as and when required in future. The respondent No.4 craves leave to add that the minutes of the meeting were made available to all the bidders immediately on 20/04/2006.
6.The respondent No.4 submits that thereafter the respondent No.4 took a vital decision on certain issues including with regard to Clause-2.3 of Schedule-B, Section-II, Volume-II specifying the provisions of service roads to be constructed by the bidder/contractor. It is submitted that the authority decided to omit the said Clause from the scope of the bidder and a copy of letter dated 12/06/2006 addressed to all the bidders is annexed herewith and marked as Annexure-C. In other words, the fact is that Ahmedabad Urban Development Authority was to lay down the service road on both the sides of the entire Ring Road was known to all the bidders well in advance. The respondent No.4 states that this decision of laying down the service roads was in the interest of public at large and more particularly for the local public of the surrounding villages.
7.The respondent No.4 submits that thereafter it received tenders from only two parties, namely (1) IL & FS Limited and (2) Sadbhav Infrastructure JV. It is submitted that there were technical bid and price bid as part of the tender and the technical bids were open on 07/07/2006 in the presence of bidders, officers of Ahmedabad Urban Development Authority as well as independent consultant appointed by the respondent authority. It is submitted that the independent consultant opined on 10/07/2006 that both the technical bids were in accordance with the requirement and thereafter Dy.Executive Engineer, Executive Engineer, Accounts Officer and Chief Executive Authority of the Authority declared both the bidders technically qualified on 14/07/2006. In view of this, price bid of both the parties were opened on 20/07/2006 and as M/s.Sadbhav Infrastructure JV was the lowest bidder, it was decided by the Chairman of the Authority to accept the bid and a letter to that effect was addressed to it on 31/07/2006 and a copy of letter of acceptance is annexed herewith and marked as Annexure-D. It is pertinent to note that through the said acceptance letter dated 01/07/2006 it was made known to the successful bidder that all the letters including minutes of pre-bid meeting were part of the agreement. In other words, it was known to the successful bidder that the service roads were to be provided by Ahmedabad Urban Development Authority on both sides of the entire Ring Road as per the convenience of the authority.
8.The respondent No.4 craves leave to make it clear as it was expected from the successful bidder to constitute a Special Purpose Vehicle (SPV) for the said project, it was thought fit by the successful bidder to form Ahmedabad Ring Road Infrastructure Limited and an intimation to that effect was made available to the respondent No.4 authority through a letter dated 05/09/2006 and a copy thereof is annexed herewith and marked as Annexure-E.
9.The respondent No.4 submits that after completion of the entire procedure, the appellant herein entered into an agreement with Ahmedabad Urban Development Authority on 07/09/2006 and therefore, it is crystal clear that the appellant was well aware that service roads on both sides of entire Ring Roads were to be laid by Ahmedabad Urban Development Authority in accordance with its requirements and hence the appellant has no right to object the said public service by Ahmedabad Urban Development Authority in any circumstances and, therefore, this Hon'ble Court is humbly prayed to reject the present Letters Patent Appeal with cost in the interest of justice.
10.The respondent No.4 humbly submits that as mentioned hereinabove, the appellant herein has never objected the stand of Ahmedabad Urban Development Authority on the issue of constructing service roads during the hearing of Special Civil Application No.26834 of 2007. The respondent No.4 submits that immediately after disposal of Special Civil Application No.26834 of 2007 on 5/8/2010 necessary procedure was initiated for construction of service road having length on 12.5 kms on both the sides of service roads from (1) Ramol Junction to Odhav Road and (2) Sheelaj Bridge Junction to Sanand Road Junction at the cost of Rs.35 crores to be borne by Ahmedabad Urban Development Authority for the benefit of local villagers. It is stated that the authority has not only invited tenders for the said project, but even technical bids are also opened on 19/01/2011 and the financial bids will be opened within a short time, so that the project can be completed at the earliest. It is pertinent to note that the said road is to be completed latest by March 2012 as per the orders of the Hon'ble High Court of Gujarat duly passed in Special Civil Application."
Respondent no.4, in its affidavit-in-surrejoinder, has further explained that why there would not be leakage of toll and why the interest of the appellant is not likely to be prejudiced. Paragraphs 2, 3, 4, 5 and 6 of the affidavit-in-surrejoinder read as under:-
"2.The respondent No.4 humbly submits that in its affidavit-in-reply the entire issue with regard to the provision of service road is made clear and the Hon'ble Court is not mislead as alleged by the appellant. At the cost of repetition, it is stated that the appellant herein is fully aware about the provision of service road parallel to Ring Road and 7 Toll Plazas on the entire Ring Road. It is stated that as such there is a provision in the Pre-Bid Minutes pursuant to queries from Patel Infrastructure Pvt. Ltd. that the contractor can erect tolls at both entry as well as exit points of all identified existing junctions with the permission of Ahmedabad Urban Development Authority. In other words, it is open to the appellant herein to erect tolls at both entry as well as exit points of identified existing junctions and a copy of said Minutes of Pre-Bid meeting is annexed herewith and marked as Annexure-A. It is submitted that the service road is to be provided and built up by Ahmedabad Urban Development Authority and the appellant herein has no say in it. The respondent No.4 craves leave to add that the interest of the appellant will be protected as it is open to it to erect tolls at both entry and exit points of all identified existing junctions with the permission of Ahmedabad Urban Development Authority. In view of this, as and when the service road is constructed, the appellant herein can make necessary provision for erection of new tolls at both entry and exist points for cross check. The respondent No.4 submits that there is already a provision for 19 existing points where service roads would meet with cross major junctions. The respondent No.4 craves leave to annex herewith a Key Plan of the Ring Road showing the details of service roads as well as major junctions and traffic survey locations and marked as Annexure-B.
3.The respondent No.4 humbly states that so far as the Ring Road is concerned, there is provision for three lanes on either of the sides and at present in all four lanes are provided and the land for the remaining two lanes is available, but at present there is no proposal and planning for constructing remaining two lanes. It is stated that as per the planning, a 5.5 meter wide lane is kept open for future planning and thereafter there is a provision for closed storm water drainage system having width of 2.5 meters. It is submitted that only thereafter there is a provision of service roads having width of 7.5 meters. In other words, laying down of service roads is not likely to affect the interest of the appellant company considering the fact that there is vast difference between the service roads and existing main carriage road i.e. Ring Road. The respondent No.4 submits that even otherwise, there would be level difference between ring road and service road and that would also protect the interest of the appellant. Apart from this, it is categorically stated that there cannot be a provision for crash barrier/curbing nearing the Toll Plazas to separate the vehicular traffic of service road and ring road.
4.The respondent No.4 submits that as per the provisions of contract, the appellant herein cannot charge toll from two wheelers, three wheelers, tractors and such other vehicles used for agriculture purpose. In other words, the apprehension of the appellant that there would be leakage of toll, has no substance.
5.The respondent No.4 craves leave to state that considering the overall development of the city of Ahmedabad, it is necessary to construct service roads for the local people and, therefore, at present it is decided to construct service road near the areas of village Bopal and Vastral. It is stated that these two areas are not only rapidly developing but also in requirement of service roads due to its locations.
6.The respondent No.4 categorically denies the averments made by the appellant that six lane ring road is to be provided in a near future. It is submitted that as such there is no decision on the issue of construction of additional two lanes and the Memorandum of Understanding to by the appellant cannot be a ground for non construction of service roads meant for local people and nearby villagers. The respondent No.4 states that from kind perusal of the Memorandum of Understanding on Page No.103, it would be clear to this Hon'ble Court that it does not provide for any details as well as terms and conditions for such projects and under its shelter the appellant is trying to restrain the authority from putting up construction of service roads to suit his purpose by way of misleading the Hon'ble Court. It is also stated that the officers of Ahmedabad Urban Development Authority has not held any meeting for construction of such additional lanes as it is not to be laid in the near future. It is stated that even if the 5th and 6th lanes are to be constructed, then also the provision for service roads is altogether different as it is a must for the local people. At the cost of repetition, it is stated that additional two lanes would be for the benefit of commercial vehicles while service roads are for the purpose of local people. The respondent No.4 states that the averments and allegations made by the appellant that Ahmedabad Urban Development Authority cannot lay service roads are thoroughly baseless and the authority craves leave to rely upon the averments made in the affidavit-in-reply."
Having regard to the rival contentions of the respective parties and in the facts and circumstances of the case, we are of the view that the entire challenge and claim of the appellant is misconceived and not tenable in law.
The concept of service road is not a new concept. It is an age old concept. Service roads are provided with a definite idea. AUDA has clarified that the construction of service road would be in such a way that it may have adequate level difference or developed plantation, garden, open drain or laying of curbing stones so that traffic of ring road may not approach the service road in between with the sole intention of avoiding the toll. The service road cannot be permitted to be merged with the toll plazas constructed by the appellant, otherwise the entire purpose of constructing service road for the benefit of local people would be frustrated. If this is done, then the local people residing in the surrounding nearby villages and localities of service road would be the sufferers because they may have to face undue hardship by paying toll frequently.
We are of the view that by merging of service road with the ring road at each and every toll plazas, as submitted by the learned counsel for the appellant, would be nothing but an additional lane on existing ring road only. In that case, it would not be a service road in any sense for local people. Adequate safeguards and remedies can be taken care of for the purpose of preventing leakage of toll fees by putting cross barriers, manual check points, etc. at the probable points of leakage of toll fees.
It is not possible to accept the submission of learned counsel for the appellant that there should not be any service road at all as that would lead to great financial loss to the appellant.
In the facts and circumstances of the case, principle of 'Damnum Sine Injuria' would be applicable. 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 appellant is not wrongful on the part of the respondent, and no right of action accrues to the appellant.
In this view of the matter and the principle of law, the Appeal is devoid of merits and the same deserves to be dismissed with cost.
The Appeal is hereby dismissed with cost of Rs.30,000=00. The cost of Rs.30,000=00 shall be paid by the appellant to the Red Cross Society, Ahmedabad and he shall produce the receipt of the same to the registry within a period of fifteen days from the date of this order. Notice stands discharged.
Ad-interim relief, if any, stands vacated forthwith.
(S.J.Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) /moin Top