Gujarat High Court Case Information System
Print
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