N BLOCK WELFARE ASSN REGD Vs. DMRC

JUDGEMENT

(1.) THESE two petitions under Article 226 of the Constitution have been filed in public interest. They call in question the correctness of a decision taken by the respondents for construction of an 'elevated corridor' for the proposed DMRC project from Central Secretariat to Badarpur in Delhi. The challenge is primarily founded on the following five pleas:

(2.) IN the counter affidavits filed by the respondents, the allegations made by the petitioners have been emphatically refuted and the maintainability of the petitions questioned. In addition, the affidavit filed by the respondent DMRC sets out the factual backdrop in which construction of a mass rapid transport system was found to be essential to ease vehicular traffic on the roads and to provide efficient, cheap and timely transport to the commuters in the capital city. The new system was to be rail based with underground and elevated service corridors to be implemented by the DMRC with equal participation of the Central Government and the Government of Delhi. The affidavit goes on to state that in Phase -I of the metro system which was finalised pursuant to the above decisions, the DMRC was to cover 65.10 Kms. with an estimated cost of 105.7 billion, sufficient to carry about 2.2 million commuters on three lines, namely, i. Shahdara to Rithala, ii. Vishwavidhyalaya to Central Secretariat; and iii. Indraprastha to Bara Khamba Road. The successful implementation and completion of the first phase of the system was according to the affidavit, hailed by one and all providing to the DMRC and the Government the confidence and the challenge to take the second phase of the system which comprises a total of 128.06 Kms. of corridor, both underground and elevated including the Central Secretariat -Sushant Lok (Gurgaon) corridor stretching over a length of 12.53 Kms. with 10 DMRC stations and Central Secretariat -Badarpur corridor over a length of 20.01 Kms. with 16 DMRC stations to be completed by June, 2010. The affidavit lays considerable emphasis on the limited scope of judicial review and attempts to justify the decision for constructing an elevated corridor over a part of the corridor between defense Colony and Nehru Place. It points out that density of population in an area in which the project is being constructed is just one of the considerations for deciding whether the DMRC corridor should be underground or elevated. Capital cost component is an equally important consideration especially in a capital intensive project like the one taken up by the respondent in which nearly 60% of the capital has been raised as a loan from a Japanese Bank. The affidavit alleges that if the entire stretch between defense Colony to Nehru Place were to be constructed underground, the same would involve an additional burden of nearly Rs. 750 crores which is a huge expenditure that is avoidable if the corridor is elevated. Maintenance of an underground stretch is also, according to the respondents, one and a half times more than the elevated stretch apart from the underground metro being more susceptible to security concerns and damage and threat to the life of the passengers in the event of a mishap in comparison to the elevated stretch. A detailed project report was, according to the respondents, prepared in which all these aspects were examined and a policy decision approving the elevated corridor taken at the highest level by the Union Cabinet. The affidavit also refers to the need for acquisition and demolition of built -up properties if the corridor were to be constructed underground. There was, according to the respondent an anticipated delay of more than two years in the construction of the Central Secretariat -Badarpur corridor if the same was constructed underground because of the hard rocky area which forms a part of the erstwhile Aravalli range being encountered by any such corridor. A preliminary survey conducted by the DMRC is said to have disclosed the need for demolition of structures over 32 plots with two or three storeyed high buildings standing on the same and involving about 100 households/commercial buildings for construction of the East of Kailash station. Acquisition of such huge and valuable properties in the area would have not only enhanced the cost of underground stretch but also given rise to huge public protests. The affidavit also states that if East of Kailash station is to be constructed underground, the Lajpat Rai road would have to be totally and substantially blocked for the construction of the said station for a period of nearly two years which would have greatly inconvenienced the public. The affidavit also refers to the need for approval of the Japan Bank of Industrial Corporation, who is financing the project and who has already approved the elevated corridor for the stretch in question. Any change at this stage in the project design would not find favor with the said bank and would thereforee either result in closure of the stretch itself or cause inordinate delay in the execution of the work, thereby entailing further increase in the outlay of the entire project. Suffice it to say that the affidavits filed by the respondents stoutly support the decision to keep the corridor elevated over the defense Colony -Badarpur stretch and deny that the said decision suffers from any perversity or violates any fundamental, statutory or legal right of the petitioners.

(3.) REFERENCE may also be made to Rustom Cavasjee Cooper v. Union of India : [1970]3SCR530 , where the Court was examining the validity of the Banking Companies (Acquisition and Transfer of Undertaking) Ordinance, 1969. Repelling the contention that the Court could examine the merits of political theories and economic policies, their Lordships declared that while the Court can strike down a law on the ground of want of authority, it will not sit in appeal over the policy of Parliament in enacting a law. The same principle was then extended to a policy decision taken by the Government to sell certain plants and equipments of Sidri Fertilizer factory which was owned by a public sector undertaking. In Fertilizer Corporation Kamgar Union (Regd.) v. Union of India : (1981)ILLJ193SC , the Supreme Court observed: We certain agree that judicial interference with the administration cannot be meticulous in our Montesquien system of separation of powers. The Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the directorate of a government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a superauditor, take the board of directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration.