STATE OF KERALA & ANR. ETC. ETC.versusM/S RDS PROJECT LIMITED & ORS. ETC. ETC.

                        [2020] 6 S.C.R. 837                            837


            STATE OF KERALA & ANR. ETC. ETC.                           A
                                 v.
        M/S RDS PROJECT LIMITED & ORS. ETC. ETC.
               (Civil Appeal Nos. 3239-3246 of 2020)
                      SEPTEMBER 22, 2020                               B
               [R. F. NARIMAN, NAVIN SINHA
                AND INDIRA BANERJEE, JJ.]
       Administrative Law: Judicial review – Project of flyover on
National Highway constructed by respondent no.1 – After a year
                                                                       C
of its use, the Ministry of Road Transport and Highways found it to
be in a distressed condition with several cracks requiring
rehabilitation measures – The IIT was thereafter appointed as an
expert agency which opined that the bridge could follow a carbon
fibre composite treatment and be repaired instead of being
demolished – Meanwhile Dr. E. Sreedharan recommended the               D
strengthening and replacement of RCC girders with PSC girders to
ensure durability which would necessitate demolition and
reconstruction and further stated that his plan ensured a 100 year
guarantee for the newly constructed flyover – In view of divergent
opinion, the State government set up a High Level Committee – This
                                                                       E
Committee accepted the proposal by Dr. Sreedharan in view of the
service life assured by him for 100 years – State Government
accepted the report of High Level Committee – Writ petition by
respondent no.1 against the order of State Government – High Court
directed Government to conduct load test of the flyover – Hence
the instant appeal – Held: High Court instead of applying well         F
established parameters of judicial review and ascertaining whether
the decision of the State Government would vitiate Art.14 went into
the matter itself and held that was better to have a load test
conducted to avoid any further controversy in the matter – State
Government in accepting the Expert Committee report cannot be
                                                                       G
said to have behaved arbitrarily – Order of High Court set aside.
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3239-
3246 of 2020.
      From the Judgment and Order dated 20.12.2019 of the High Court
of Kerala at Ernakulam in R.P. No. 1253/2019 in W.P.(C) 26030/2019,    H
                                837
838            SUPREME COURT REPORTS                           [2020] 6 S.C.R.


A     R.P. No. 1251/2019 in W.P.(C) 26405/2019, R.P. No. 1249/2019 in
      W.P.(C) 25362/2019, R.P. No. 1243/2019 in W.P.(C) 25343/2019 and
      common order dated 21.11.2019 in W.P.(C) No. 26030/2019, W.P.(C)
      No. 26405/2019, W.P.(C) No. 25362/2019 & W.P.(C) No. 25343/2019.
            K.K. Venugopal, Attorney General for India, Dr. Abhishek Manu
B     Singhvi, Jaideep Gupta, Gopal Sankaranarayanan, V.Giri, Rana Mukharjee
      Sr. Advs., Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena Prakash, G.
      Prakash, Pragyan Pradip Sharma, Ms. Amita Singh Kalkal, Eeshan
      Pandey, Deepu Thankan, Ms. Madhavi Khanna, Karan Valecha, Ms.
      Lakshmi, Ms. Gurnoor Kaur, Prakash Ranjan Nayak, K.V. Manoj Kumar,
      Kumar Shashank, Surjendu Sankar Das, Nithin George, Ms. Annie Mittal,
C     Krishna Dev Jagarlamudi, Zulfiker Ali P. S, Rafeek V.K., Advs. for the
      appearing parties.
            The Judgment of the Court was delivered by
            R.F. NARIMAN, J.
D           1. Leave granted.
             2. Heard Mr. K.K. Venugopal, learned Attorney General for India
      appearing on behalf of the State of Kerala, Dr. Abhishek Manu Singhvi,
      learned Senior Counsel for the Respondent No.1, Mr. Gopal
      Sankaranarayanan, learned Senior Counsel for the Respondent No.3,
E     Mr. Jaideep Gupta, learned Senior Counsel for the Respondent No.2,
      Mr. Rana Mukherjee, learned Senior Counsel for the Respondent No. 9
      and Mr. V. Giri, learned Senior Counsel for the Respondent Nos. 4 & 5.
      The impugned High Court judgment dealt with a project called the
      Palarivattom Flyover on the National Highway, Cochin City, State of
F     Kerala. This was constructed by Respondent No.1 and inaugurated on
      12.10.2016. However, after one year of this Flyover being used, the
      Consultancy Agency for the Ministry of Road Transport and Highways,
      Government of India, on regular inspection of the bridge, reported on
      16.03.2018 that the bridge was in a distressed condition with several
      cracks as a result of which measures should be taken to rehabilitate the
G     flyover. The IIT, Madras, was thereafter appointed as an expert agency
      which delivered several reports in which, according to it, the bridge could
      follow a carbon fibre fabric composite treatment and be repaired instead
      of being demolished. Meanwhile, Dr. E. Sreedharan submitted a report
      to the Chief Minister of Kerala on 03.07.2019 in which he recommended
      the strengthening and replacement of RCC girders with PSC girders to
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STATE OF KERALA & ANR.v. M/S RDS PROJECT LIMITED &                             839
              ORS. [R.F. NARIMAN, J.]

ensure durability which would necessitate a demolition and re-construction     A
of the bridge. Dr. E. Sreedharan, by a report dated 14.09.2019, referred
to the IIT reports and did not agree with the same, stating that if his plan
was to be carried out, a 100 year guarantee would be given for the
newly constructed flyover.
       3. Given these divergent streams of opinion, the State Government       B
then set up a High Level Committee consisting of five persons who are
as follows:-
      1. Sri Ashok Kumar M. (Convenor)
         Chief Engineer, National Highways,
         Public Works Department                                               C
         Thiruvananthapuram
      2. Sri S.Mano Mohan (Member)
         Chief Engineer, Bridges,
         Public Works Department
         Thiruvananthapuram
                                                                               D
      3. Sri M.N. Jeevaraj (Member)
        Chief Engineer (Rtd.),
         Public Works Department
         Thiruvananthapuram
      4. Sri S. Saju (Member)
                                                                               E
         Senior Bridge Engineer,
         Public Works Department
         Thiruvananthapuram
      5. Sri S.M. Ashraf (Member)
         Senior Structural Engineer,
         Public Works Department                                               F
         Thiruvananthapuram
       4. It will be noticed that apart from experts who were engineers,
one of whom was a Senior Bridge Engineer, a Senior Structural Engineer
of the PWD was also a member of this Committee. This Committee
went into the IIT reports and the Sreedharan report in some detail, after      G
which it concluded as follows:
      “9. Conclusion
      “a. The tests carried out by IIT Chennai are as per IS codes and
      IRC recommendations. IIT Chennai being a premier and reputed
                                                                               H
840            SUPREME COURT REPORTS                           [2020] 6 S.C.R.


A           institution, their findings can be accepted and relied on. However,
            a load test as specified in IRC 112:2011 has not been proposed by
            IIT Chennai. The reasons are not mentioned in their report. The
            Committee feels that since crack width in certain girders have
            exceeded the allowable limits which is one of the compliance
            criteria for load test, IIT might have decided that there is no point
B
            in doing a load test before strengthening. However, IIT has
            recommended load test after strengthening the flyover. IIT has
            suggested its scheme for strengthening the flyover, which again is
            as per IRC recommendations. But, IIT has not mentioned the
            service life of the flyover after strengthening. IRC also does not
C           recommend service life of any structure after doing the
            strengthening works proposed by IIT.
            b) As mentioned by Dr. E.Sreedharan a new construction with
            proper design, with quality execution of the work with quality
            materials and strict technical supervision can expect a service life
D           of 100 years.
            c) Construction cost of the proposal of demolishing and replacing
            of superstructure as proposed by Dr.E. Sreedharan will cost (18.71
            crores), more than double the cost estimated for the strengthening
            scheme proposed by IIT (7.31 crores). The required completion
E           time for both cases is almost the same.
            d) Normally rehabilitation/strengthening are required for old as
            well as distressed bridges having service life of 40 years or more
            and also strengthening works are normally required for limited
            members or locations of a flyover/bridge. In the case of
F           Palarivattom flyover as per the findings of IIT Chennai, 97 RCC
            girders out of 102 girders requires strengthening which is an
            extensive strengthening work for superstructure. Based on the
            all the above factors, Committee is of the opinion that considering
            the service life assured by Dr. E. Sreedharan for 100 years, it is
            better to accept the proposal by him.”
G
             5. The State of Kerala, by a G.O. dated 25.10.2019, examined
      this High Level Committee Report, and accepted it, stating as follows:
            “6. Government have examined the whole matter in detail and
            have decided to accept the recommendations of the Technical
            Committee and to proceed accordingly.
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STATE OF KERALA & ANR.v. M/S RDS PROJECT LIMITED &                             841
              ORS. [R.F. NARIMAN, J.]

      It is also decided to accept the letter of offer made by Delhi Metro     A
      Rail Corporation to take over the bridge for rehabilitation as per
      letter read as 6th above. DMRC shall submit detailed item wise
      estimate for approval of Government. On the basis of the detailed
      estimate, Finance Department shall allot funds in the appropriate
      Head of Account for the purpose. RBDCK will hand over the
                                                                               B
      bridge site to DMRC free of all encumbrances.
      7. RBDCK shall realize the loss sustained to the Government
      from the contractor in the light of the report of IIT Madras, report
      of Dr. E.Sreedharan and the FIR filed in case No. 1/2019 of
      Moovattupuzha Vigilance Court and as per the relevant provisions
      of the agreement. RBDCK shall also initiate action against the           C
      contractor for the lapses as per PWD Manual.
      8. This order will be subject to the final decision of Hon’ble High
      Court in WP (C)s 25343, 25362 and 26405 of 2019.”
       6. At this point, a Writ Petition was filed by the Respondent No.1      D
in the Kerala High Court against the aforesaid G.O. By the impugned
judgment, the Kerala High Court went into the terms, in particular, clause
11 of the original tender between the contractor- Respondent No.1 and
the State, and then considered the various reports. The High Court also
noticed that a vigilance enquiry had been conducted because there were
allegations that there was large scale corruption, and as part of it, a team   E
of experts from the Government Engineering College, Trichur reported
that there are 2183 cracks on the girders out of which 99 cracks are
above 0.3 mm width and 83 cracks on pier caps out of which 5 cracks
are about 0.3 mm width.
       7. After considering the arguments of counsel appearing for all         F
parties, including the Respondent No.3- KITCO, stating that a load test
is extremely necessary for the purpose of ascertaining the strength of
the flyover before anything further is done to it, the High Court concluded:
      “19. There is no dispute about the fact that as per the terms of
      contract between the parties, load test is a requirement to be           G
      performed to ascertain the strength of the bridge and to ensure
      that it has the expected strength. According to the contractor,
      though certain cracks have developed in the girders, it needs only
      repairs which the contractor is willing to do and it would not affect
      the strength of the bridge in any way. A similar view had been
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842             SUPREME COURT REPORTS                             [2020] 6 S.C.R.


A           expressed by the consultant M/s KITCO as well. According to
            them, the load test is mandatory to ascertain the strength of the
            bridge, and if the girders and platform are demolished, such an
            opportunity will be lost. The Government and its authorities are
            not in favour of a load test since they feel that the aforesaid cracks
            itself are enough to arrive at a conclusion that those girders are to
B
            be demolished. Government had already taken a decision to
            remove the platform and girders. Once it is removed and
            demolished, it may not be possible to ascertain the strength of the
            present structure, which may prejudicially affect the right of all
            the stakeholders, including the Government. The contractor as
C           well as the consultant still believes that the load test would prove
            that there is no requirement for demolishing the structure.
            Therefore, before demolishing the platform and the girders, it is
            better to have a load test conducted, to avoid any further
            controversy in the matter. After conducting such load test, it shall
            be open for the Government and its authorities to take a decision
D
            whether they should proceed in accordance with the manner in
            which they have already decided or to take a different approach
            in the matter.
            In the result, the following directions are issued.
E           (i) That the Government shall conduct a load test of the
            Palarivattom flyover through an approved qualified agency capable
            of conducting such a test, with notice to all the stakeholders.
            (ii) The entire expenditure for conducting the load test shall be
            borne by the petitioner in WP (C) No. 26030/2019.
F           (iii) The entire process shall be completed within a period of three
            months or at an early date, as may be possible.
            (iv) After conducting the load test, the Government shall file a
            statement before this Court along with the report of the concerned
            agency.”
G
             8. Having perused the High Court judgment, what is clear is that
      the High Court, instead of applying the well-established parameters of
      judicial review and ascertaining whether the decision of the State
      Government would violate Article 14, went into the matter itself and
      stated that it is better to have a “load test conducted to avoid any further
H     controversy in the matter”.
STATE OF KERALA & ANR.v. M/S RDS PROJECT LIMITED &                              843
              ORS. [R.F. NARIMAN, J.]

       9. Given the fact that an Expert Committee, which is a High level        A
Committee of five experts was set up to go into the divergent opinions of
IIT Madras and Dr. E. Sreedharan, and the experts having come to a
particular conclusion, it is very difficult then to say that the Government,
in accepting such Expert Committee Report, could be said to have
behaved arbitrarily. On this ground alone, we set aside the judgment of
                                                                                B
the High Court, as also the review judgment.
       10. The appeals are allowed in the aforesaid terms.
      11. The Writ Petitions that are pending in the High Court may be
disposed of within a period of six months from today.
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Devika Gujral                                                Appeals allowed.




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