IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 139 of 2011 With CIVIL APPLICATION No. 12495 of 2011 In WRIT PETITION (PIL) No. 139 of 2011 With CIVIL APPLICATION No. 106 of 2012 In WRIT PETITION (PIL) No. 139 of 2011 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA 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 ?
========================================================= J.S. BINDRA & 2 - PETITIONER Versus STATE OF GUJARAT & 4 - RESPONDENT ========================================================= Appearance :
MR PERCY KAVINA, SR.ADVOCATE with MR RITURAJ M MEENA for PETITIONERS. MR PK JANI, GOVERNMENT PLEADER for RESPONDENT : 1, 5.
MR PRASHANT G.DESAI, SR.ADVOCATE with MR KAUSHAL D PANDYA for RESPONDENT : 2.
MR PS CHAMPANERI for RESPONDENT : 3 - 4.
========================================================= CORAM :
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 08/02/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This writ-petition in the nature of a Public Interest Litigation has been preferred by the petitioners who are residents of city of Surat, bringing to the notice of this Court the decision of the Surat Municipal Corporation to dismantle 134-year-old Hope Bridge named after Theodore Cracraft Hope, a British civil servant in the late 1800s, standing over the river Tapi and which was the only link for almost 90 long years between Surat city and Rander-Hazira Industrial Belt till the new bridge named Nehru Bridge came to be constructed in the year 1966-67 very much adjoining the Hope Bridge.
According to the petitioners this decision of the Surat Municipal Corporation is not in public interest as Hope Bridge deserves to be preserved as a heritage structure. It is in this background that the petitioners, two of them retired I.P.S. officers who have served as Police Commissioner in the city of Surat and the third petitioner, a retired District Development Officer, have filed this petition with the following prayers :-
“(A) Your Lordships be pleased to issue a writ of Mandamus or any other writ in the nature of Mandamus directing the respondent no.2 Surat Municipal Corporation not to initiate process for dismantling of Hope Bridge and further be pleased to direct respondent no.3 to initiate study as to whether Hope Bridge can be declared as protected monument as defined under Ancient Monuments and Archaeological Sites and Remains Act, 1958.
(B) Pending admission, final hearing and disposal of the present petition Your Lordships may be pleased to direct the respondent Corporation not to initiate any process with respect to dismantling of Hope Bridge.
(C) Your Lordships be pleased to direct respondent no.2 Surat Municipal Corporation to protect the Hope Bridge from vandalism by local miscreants.
(D) Your Lordships may be pleased to pass such other and further order in the interest of justice which may be deemed fit to this Hon'ble Court.”
I. History of the Hope Bridge :
Record reveals that Hope Bridge was constructed in the year 1877 over river Tapi in Surat and was commissioned by the then District Collector and Magistrate of Surat, Theodore Cracraft Hope, a British civil servant of late 1800s. According to the petitioners the Bridge also happens to be first concept of a 'Public-Private Partnership' to speed up infrastructure development in the times of financial crunch. In the year 1866 when the town of Surat was taken over by Britishers, the condition of the Bridge was very poor as no civic facilities were being provided by the Moghul Empire. According to the petitioners, despite being a busy port, the city lacked transportation facility which was ultimately looked into by the Collector late Mr.Hope who found an interesting way to get the development work done by collecting funds from the local bodies in addition to the funds from the Government and the construction of the Bridge commenced in the year 1874 and was completed in the year 1877.
According to the petitioners, it is the first bridge over river Tapi and has played a vital role in the development of the twin towns of Surat and Rander. Ultimately, in the year 1966-67, Surat Municipal Corporation thought fit to construct a new bridge named Nehru Bridge very much adjoining the Hope Bridge, which is being used as on today by the people of Surat.
II. Genesis of this Public Interest Litigation :
Having regard to the condition of Hope Bridge, Surat Municipal Corporation took decision to dismantle the Bridge as, according to the experts, the Bridge has undergone severe corrosion of some load bearing components requiring large scale repairs. The team of experts opined that if in its present condition it cannot be used for vehicular traffic, then it is advisable to dismantle it for the safety of persons and safety of adjoining Nehru Bridge. This decision, according to the petitioners, is not reasonable as the Corporation and the State Government owe a duty to preserve the Bridge as an ancient monument considering it as an important heritage and historic landmark of city of Surat.
It appears that in this regard representations were made by the petitioners addressed to the Hon'ble Chief Minister of Gujarat as well as to the Superintending Archaeologist, Archaeological Survey of India, Vadodara.
It is a case of the petitioners that the Archaeological Survey of India, vide its letter dated 2nd April 2011, informed the Corporation that it will be of immense interest to see and assess if Hope Bridge can safely be preserved as a heritage property for the people at large and for posterity. According to the petitioners, the Superintendent Archaeologist who very well falls within the definition of “Archaeological Officer” as defined under clause 2(c) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short, 'the Act of 1958') requested the Corporation not to demolish the Bridge.
According to the petitioners despite repeated requests, the respondent Corporation has proceeded to accept tender of Rs.2.3 crore for dismantling the Bridge and has also accepted EMD amount. According to the petitioners, they learnt about the same after reading an article published in the newspaper “Times of India” dated 6th October 2011. It is in this background that the petitioners thought fit to prefer this petition in the nature of a Public Interest Litigation, seeking intervention of this Court to save Hope Bridge from being dismantled.
Considering the issue in question, this Court thought fit to issue notice to the respondents. In response to the notice, the respondents appeared and they have filed their respective affidavit- in-reply. Initially, at the time of issuance of notice, no relief was granted so far as dismantling of the Bridge is concerned. However, during the pendency of the writ petition, the Corporation proceeded with the work of dismantling the Bridge and, therefore, a civil application came to be filed being Civil application No.106 of 2012, wherein the petitioners prayed for interim relief restraining the Corporation to go ahead with the work of dismantling the Bridge till the conclusion of the main petition.
When the matter was taken-up for hearing, learned counsel appearing on behalf of respondent no.2 – Municipal Corporation made a statement that the Corporation will keep the Bridge in the same position. The statement has continued till this date, and while reserving the final judgment, this Court stated in the order dated 19th January 2012 that the interim order earlier granted will continue till the delivery of the judgment.
We have heard learned senior counsel Mr.Percy Kavina appearing with learned advocate Mr.Rituraj Meena for the petitioners, learned senior counsel Mr.Prashant G.Desai appearing with learned advocate Mr.Kaushal Pandya for respondent no.2 – Surat Municipal Corporation, learned Government Pleader Mr.P.K.Jani appearing for respondent no.1 – State of Gujarat and respondent no.5 – Collector, Surat, and learned Assistant Solicitor General of India Mr.Pankaj Champaneri appearing for respondent nos.3 and 4.
III. Submissions of Petitioners :
It has been vehemently submitted that the Hope Bridge is an important heritage and historic landmark of the city of Surat as :
a. It is a 134-year old bridge and hence qualifies to be a heritage structure under ASI Act being more than hundred years old.
b. It is magnificent example of wrought iron structure of great engineering important.
c. It is the first bridge over River Tapi and has played a vital role in development of the twin towns of Surat and Rander.
d. It is probably the first example of now popular Public Private Partnership (PPP) concept of infrastructure projects.
e. It is the very soul of the proposed heritage zone of Surat city with magnificent Sultanate Fort and other Mughal buildings.
f. It has a potential of being used as pedestrian plaza for the extremely congested Surat city.
g. Spread over many generations, Suratis have very strong sense of association and reorganization with this structure as it has a very important heritage and historic place in the development of the city and its suburbs.
Learned counsel further submitted that the fact that the Bridge has heritage importance is evident from the affidavit-in-reply filed by all the respondents, wherein they have admitted the heritage value. He has submitted that the State of Gujarat, vide its additional affidavit dated 11th January 2012, has stated that the State Government is agreeable to carry out survey by respondent nos.3 & 4, and the Director, Gujarat State Archaeology and City Engineers of Surat Municipal Corporation be included in the committee which may be constituted by this Court.
Counsel invited our attention to the additional affidavit dated 19th January 2012 filed by respondent no.2, wherein it has been stated that inspite of request made by the Corporation, the Hope Bridge is not being considered as a heritage property by the State Government.
Counsel further invited our attention to the affidavit dated 8th December 2011 filed by respondent nos.3 and 4, wherein it has been stated that the Superintending Archaeologist, vide his letter dated 2nd April 2011, has asked the Surat Municipal Corporation not to demolish the Bridge and it will be of immense interest to see if the Bridge can safely be preserved as a heritage property. It has also been argued that the ownership of the Bridge belongs to the State of Gujarat and not the Surat Municipal Corporation who is currently acting as a custodian of the Bridge. Under such circumstances, when the State Government is agreeable for expert committee to be formed by the Hon'ble Court to study and preserve the Bridge as a heritage structure, to which the petitioners are also agreeable, the will of the Surat Municipal Corporation to demolish the Bridge will not be having an overriding effect on the will of the State. Further, the Surat Municipal Corporation has clearly stated in their first affidavit that the State Government has to take the ultimate decision. Hence, the State Government's suggestion for the committee is acceptable to the petitioners.
Learned counsel further submitted that though the Sardar Vallabhbhai National Institute of Technology, Surat, as an expert body, in its report, has recommended for dismantling the Bridge for safety of persons and safety of adjoining Nehru Bridge, the report is silent on the possibilities of conservation and preservation of the same as heritage property, which is a specialized job to be performed by expert agencies like ASI, INTACH, etc. According to learned counsel the report of SVNIT dated 10th October 2011 implies that after necessary repairs the Bridge can be used for vehicular traffic, and since the Bridge is not in use currently, it poses no threat to individuals or traffic as it is on the downstream of the Nehru Bridge and it will not cause any damage even to Nehru Bridge.
Learned counsel lastly submitted that Article 49 of the Constitution of India cast an obligation upon the State to protect monument or place or object of artistic or historical interest. It is argued that the value of a heritage property lies in its antiquity and historic vintage and cannot be measured by commercial considerations. Citing examples of Ellisbridge at Ahmedabad and Adalaj Vav (Well) also at Ahmedabad, he submitted that heritage landmarks are valued for their intrinsic and intangible values.
Learned counsel relied on a decision of the Supreme Court in the case of Rajeev Mankotia v/s. Secretary to the President of India, reported in AIR 1997 SC 2766. Learned counsel led stress on the following observations of the Supreme Court made in paragraph 6. They are as under :-
“6. It would, therefore, be manifest that all ancient and historical monuments and all archaeological sites and remains or any structure, erection or monument or any tumulus or place of interment shall be deemed to be ancient and historical monument or archaeological sites and remains of national importance and shall be so declared for the purpose of Ancient Monuments Act if they have existed for a century; and in the case of a State monument, of State importance covered by the appropriate State Act. The point of reference to these provisions is that an ancient monument is of historical, cultural or archaeological or sculptural or monolithic or artistic interest existing for a century is of national importance or of State importance. In other words, either of them are required and shall be protected, reserved and maintained as national monuments or State monuments for the basis which not only gives pride to the people but also gives us insight into past glory of our structure, culture, sculptural, artistic or archaeological significance, artistic skills and the vision and wisdom of our ancestors, which should be preserved and perpetuated so that our succeeding generations learn the skills of our ancestors and traditions, cultural and civilisation. They would have the advantage to learn our art, architecture, aesthetic tastes imbibed by the authors of the past and to continue the same tradition, for the posterity. Preservation and protection of ancient monuments, is thus the duty of the Union of India and the State Government concerned in respect of ancient monuments of national importance or those of State importance respectively to protect, preserve and maintain them by preserving or restoring their original conditions.”
He, therefore, prayed that this is a fit case where this Court should exercise its jurisdiction under public interest and issue appropriate writ, order or direction upon the respondent to preserve Hope Bridge as an ancient monument.
IV. Submissions of respondent no.2 – Surat Municipal Corporation :
Learned counsel Mr.Prashant G.Desai appearing for the Corporation submitted that the decision of the Corporation to dismantle 134-year old Hope Bridge is in the nature of a policy decision and administrative in nature. He submitted that as such there is no public interest involved so far as the decision to dismantle the Bridge is concerned. He submitted that after taking into consideration all relevant aspects and more particularly the opinion of expert bodies like SVNIT, Surat, the Corporation finally took decision to dismantle the Bridge, for which tender came to be floated and has been finalized too. He submitted that Hope Bridge has not been declared so far, as an 'ancient monument' as defined under section 2 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and, therefore, it would not fall within the category of 'protected monument' as defined under section 2(j) of the Act of 1958. He vehemently submitted that judicial review is no method of inquiring into the wisdom, expediency or reasonableness of administrative acts. He submitted that this Court should be unwilling to substitute its own decision for that of the responsible authority. He submitted that the Hope Bridge was handed over by the State Government to the Corporation in the year 1972 on certain terms and conditions and the major term was that if the Hope Bridge is in non-use condition, it should be given back to the State Government and in future if the Hope Bridge is not to be used, the income out of the disposal of the said Hope Bridge was to be given to the State Government. He submitted that in the year 1975, in view of flood in River Tapi, on the side of Adajan, two spans were damaged and, therefore, the State Government directed the Corporation for closing the Bridge and dismantle it. He submitted that, however, at that time, there was no other bridge and, therefore, it was decided to strengthen the bridge for light vehicles, and when the new bridge was constructed, the Hope Bridge was opened for pedestrian traffic only and in the year 2000 again it was decided to get the report and the said work was given to Stup Consultancy. Thereupon, the Commissioner addressed a letter to the Secretary, R&B Department, Sachivalaya, Gandhinagar, for requesting the State Government to allow the Corporation to take the income of the Hope Bridge for making construction of new bridge.
Mr.Desai invited our attention to a letter dated 31st August 2004 addressed by the Deputy Secretary, R&B Department to the Corporation that the Bridge is handed over to the Corporation for its management on two conditions, namely, (i) the day the Bridge is not in use, the Corporation shall hand over once again to the State Government, and (ii) the day the use of the Bridge is stopped and if it is decided to dismantle then the income which would be generated from the debris of the Bridge shall be deposited with the State Government.
Mr.Desai submitted that the General Body of the Corporation accepted the proposal of the State Government on 30th October 2004 and a resolution was passed on the same date asking the State Government to take back the possession of Hope Bridge and a letter to that effect was also sent by the Commissioner to the Secretary, R&B on 29th November 2004. He submitted that, however, there has been no development since then and on 9th February 2010 inspection was carried out once again and it was decided to dismantle the Bridge so as not to damage the existing Nehru Bridge which is very much adjacent to the Hope Bridge.
He submitted that on 14th November 2011 the Commissioner addressed a letter to the Principal Secretary to the Hon'ble the Chief Minister explaining in detail the position about the Hope Bridge. He submitted that in view of various correspondence the State Government has fixed the upset value of the removal of the Hope Bridge at Rs.2,90,57,600=00 and for three times the tenders were invited, but no tender came in the year 2010 and, therefore, the upset value was reduced to Rs.2,25,71,600=00. Two parties filled up the tender and the tenderer H.A.Qureshi & Co. of Mumbai was the successful bidder in technical bid quoting Rs.2,31,55,111=00.
Counsel submitted that the successful bidder has deposited EMD amount of Rs.22,58,000=00 but the tender has not been placed before the Standing Committee for final sanction. He submitted that the Commissioner has also requested that if one span is given to the Corporation by the State Government without any value, then the Corporation can place the same as 'heritage premise' and in this regard a letter was written to the State Government requesting the same by the Commissioner on 14th November 2011.
He further submitted that the ownership of the Hope Bridge is of the State Government and the State Government has to take the ultimate decision. He submitted that even SVNIT was requested recently to inspect the Bridge and report as regards the feasibility of retaining the same. The SVNIT in no uncertain terms has opined that it is advisable to dismantle it for safety of persons and safety of adjoining Nehru Bridge. At this stage, learned counsel for the Corporation also invited our attention to a further affidavit filed on behalf of the Corporation, wherein the Incharge Executive Engineer has stated thus:
“I submit that even when the possession was handed over by the State Government to the Corporation, two spans were removed by the State Government after the possession was handed over. I submit that in February 2010, the Hope Bridge was damaged on the side of Chowk Bazar and, thereafter, the employee of the Corporation and the Professor of SVNIT made inspection and gave report and, therefore, the last span (on the side of Chowk Bazar) was also removed in 2010.
I submit that the Hope Bridge is not functioning at present and no vehicle, much less the pedestrian can be permitted on the said Hope Bridge because it is on a very dangerous condition.
I submit that since there was suggestion to strengthen the Hope Bridge, the Corporation in the year 2003 has asked the study to be made to STUP Consultant, Mumbai and feasibility report was also prepared which is already annexed in the earlier affidavit filed on behalf of the Corporation. The STUP Consultant gave report that if new bridge is to be constructed it will cost Rs.1.50 crores, which is in the year 2003. Even thereafter, the Corporation gave work to SVNIT College for making survey and the report was made on 10th October 2011 where it will be dangerous for the public at large if the Hope Bridge is permitted to continue to function as it was in very much dilapidated condition.
I submit that the Surat Municipal Corporation got prepared the draft heritage policy of Central Urban Development Corporation, Delhi, in September 2009 and at that time the suggestion from the Gujarat Urban Development Corporation was also called for. In the said report it was also mentioned that the Hope Bridge is required to be dismantled and demolished.
I submit that the survey is already made by SVNIT and also by STUP Consultant earlier. I submit that the Central Water Power Resources, Pune, has also opined that the Hope Bridge is damaging foundation on Nehru Bridge and, therefore, the Hope Bridge is required to be demolished. I submit that inspite of Sardar Patel, Swami Vivekanand Bridge there is heavy load of traffic on Nehru Bridge and, therefore, new bridge is required to be constructed just by the side of Nehru Bridge and the foundation of Hope Bridge and Nehru Bridge are not similar and there is efflux, where there is a flood there is difference in level of water in respect of both the bridges. I submit that inspite of request made by the Corporation, the Hope Bridge is not being considered as heritage property by the State Government. I submit that even SVNIT was also requested recently to report for condition and assessment of Hope Bridge, and the report was given by the said Institution on 10th October 2011 which was advised that it is advisable to dismantled the bridge for the safety of person and for safety of Nehru Bridge.
I submit that in view of the fact that there are reports from the STUP Consultant as well as SVNIT, after the survey being made by the Professor of SVNIT, which is well-known Engineering Institute, there is no further progress. On the contrary, the Corporation has asked the State Government to give two spans for placing the same somewhere as heritage property, but, the bridge as such will have to be dismantled in view of what is stated earlier in the affidavit-in-reply and in this affidavit also.”
He, therefore, submitted that this Court may not entertain this petition in the nature of a Public Interest Litigation.
V. Submissions on behalf of respondent nos.3 and 4:
Learned Assistant Solicitor General of India Mr.Champaneri appearing on behalf of respondent nos.3 and 4 submitted that in response to a letter from the Principal Director, Indian National Trust and Cultural Heritage (INTACH), New Delhi, the Superintending Archaeologist, Archaeological Survey of India has, vide his letter dated 2nd April 2011, informed the Corporation that it will be of immense interest to see and assess if the Hope Bridge can safely be preserved as a heritage property for the present and future positively. He submitted that nevertheless the structure under reference is not an ancient monument of national importance or protected monument by Government of India through Archaeological Survey of India, under the Act of 1958. He submitted that the Archaeological Survey of India, Vadodara Circle, Vadodara has emphasized the need and has shown interest of conducting a scientific study of the Hope Bridge by a competent agency to determine whether it can safely be preserved as a heritage property for the present, and for which, if required, the Archaeological Survey of India will be willing to offer technical advise in matters pertaining to its conservation, preservation and maintenance. He, therefore, submitted that this Court may entertain this Public Interest Litigation and direct the Corporation not to dismantle the Hope Bridge without the prior consultation with Archaeological Experts and assistance of NGOs who are willing to help in suggesting an alternative choice.
VI. Submissions on behalf of respondent no.1 – State of Gujarat :
Learned Government Pleader Mr.Jani submitted that on 4th November 2011 a letter was addressed to the petitioners by the office of the Director, Gujarat State Archaeology under Sports, Youth and Cultural Activities Department, Government of Gujarat, informing that the Government is of the view that every structure which is 100 years or more old cannot be declared as an ancient monument and protected monument but the local authority can consider to preserve it and, therefore, the copy of the letter which was addressed to the petitioners was also forwarded to the Commissioner, Surat Municipal Corporation. He submitted that the Government informed the Corporation that the Corporation may consider maintaining the Hope Bridge as its city heritage after proper assessment of its strength and feasibility. He further submitted that the State Government is agreeable to carry out survey by respondent nos.3 and 4 and if at all the Hon'ble Court deems fit to constitute a committee then the Director, Gujarat State Archaeology and City Engineer of Surat Municipal Corporation be included in the committee. He submitted that the committee which may be constituted be directed to give its report within the stipulated time as the Hon'ble Court may deem fit considering the reports of technical experts that the Bridge is in a dilapidated condition and it requires immediate dismantling. He submitted that as such there is no public interest involved in the matter and the decision taken by the Corporation to dismantle the Hope Bridge being an administrative decision, as a matter of policy, the same may not be disturbed in exercise of jurisdiction under Article 226 of the Constitution of India.
Having heard learned counsel for the parties and after going through the materials on record, we shall now proceed to carry out analysis of the arguments canvassed by the respective parties.
VII. Analysis :
Ordinarily, court would allow litigation in public interest if it is found :
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India and relief is sought for its enforcement;
(ii) 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;
(iii) 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;
(iv) That such person or group of persons is not a busy body of meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) 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;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) 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;
(ix) 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, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
In the well-known pronouncement of the Supreme Court in the case of the Janata Dal v/s. H.S.Chowdhary and others, reported in AIR 1993 SC 892, the Supreme Court in detail has explained Public Interest Litigation – Its origin and meaning. In paragraphs 48, 49, 50 and 51, it has been observed as under :-
“48. The question, "what 'PIL' means and is?" has been deeply surveyed, explored and explained not only by various judicial pronouncements in many countries, but also by eminent Judges, jurists, activist lawyers, outstanding scholars, journalists and social scientists etc. with a vast erudition. Basically the meaning of the words 'Public Interest' is defined in the Oxford English Dictionary, 2nd Edition, Vol. XII as "the common well being also public welfare".
49. In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), 'public interest' is defined thus:
"PUBLIC INTEREST (1) A matter of public or general interest "does not mean that which is interesting as gratifying curiosity or a love of information or -amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected".
[per Cambell C.J., R. v. Bedfordshire, (1855) 24 LJQB 81 (84)].
50. In Black's Law Dictionary (Sixth Edition), 'public interest' is defined as follows:
Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national government "
51. The expression 'litigation' means a legal action including all proceedings therein, initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression 'PIL' means a legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. There is a host of decisions explaining the expression 'PIL' in its wider connotation in the present day context in modern society, a few of which we will refer to in the appropriate part of this judgment.”
Applying the aforesaid tests to the facts of the present case, this Court owes a duty to see as to whose cause are the petitioners promoting when a petition is filed to pursue a Public Interest Litigation? Whose fundamental or other rights, if any, have been infringed? Who is to be relieved against any wrong and injury caused to him for which he cannot come to this Court ? These are some of the vital questions which are to be answered to test maintainability of any petition which purports to be in 'Public Interest ' and for a 'Public Cause'.
This concerns the locus standi of the petitioners. In yesteryear, and perhaps even in the not too distant a past, the one recurring theme that bedevilled administrative-law and judicial review most was the vexed question of locus standi. But there is a much wider concept of locus standi now. It now takes in any one who is not a mere "busy-body" or a "meddle-some interloper" and all that need be shown is a sufficiency of interest in the matter to which the petition relates. We have, "actio popularis" by which any citizen can enforce law for the benefit of all, against public authorities touching their statutory duties.
Petitioners are undoubtedly litigating a matter of public interest. Though they have no personal interest, they have a special interest as part of a group. Their concern is deeper than that of a mere busy-body. To say that they have no enforceable rights and that therefore they have no locus standi is to beg the question; and to confuse between locus standi on the one hand and justiciability and merits on the other. Both aspects, no doubt, are in overlapping areas and sufficiency of interest must, of course, be seen against the subject-matter of the proceeding, the nature of the duty sought to be enforced and the nature of the breach. The words of a learned author on the subject may be recalled 'Administrative Law' by P.P.Craig, 2007 South Asian Edn. Page 729:
"The one matter on which their Lordships agreed, albeit with differing degrees of emphasis, was that standing and the merits could often not be separated in this way. It might be possible to do so in relatively straightforward cases, but for more complex cases it would be necessary to consider the whole legal and factual context to determine whether an applicant possessed a sufficient interest. The term merits here meant that the court would look to the substance of the allegation in order to determine whether the applicant had standing. This included the nature of the power or duties involved, the alleged breach, and the subject-matter of the claim."
Even if a person has locus standi , the issue raised by him may, yet be non-justiciable. There may be degrees of justiciability. In the present case it must be held that petitioners have a sufficiency of interest to sustain their standing to sue. They cannot, therefore, be told off at the threshold.
However, the important question which we need to address now is as to whether the petitioners are entitled to any relief as prayed for in the petition. We are of the view that in a writ petition in the nature of a Public Interest Litigation, the High Court cannot go into the merits of the controversy as to whether or not a 134-year old bridge requires to be pulled down or deserves to be repaired and preserved as an important heritage and historic landmark. Judicial review is no method of inquiring into the wisdom, expediency or reasonableness of administrative acts. It is true that administrative decisions must not be unreasonable or, at least, not so unreasonable that no reasonable authority could have arrived at that decision. That is one facet of perversity. But, it is unreasonable to assume that because another party disagrees with one's own view of the matter, his or her view is, necessarily, unreasonable. In our opinion, a litigation does not become a Public Interest Litigation merely on the arguments that, spread over many generation, people of city of Surat have strong sense of association and reorganization with Hope Bridge as it is a very important heritage and historic place in the development of the City and its suburbs. Public interest cannot be equated with public sentiments or public emotions. In exercise of public interest jurisdiction Court cannot get swayed away by public sentiments or public emotions. The fact that Hope Bridge was constructed some 134 years ago and is an important heritage and historic landmark of Surat city being the first bridge over River Tapi and magnificent example of wrought iron structure of great engineering importance, could not, by itself, invest the Bridge with such importance regarding its utility, with the passage of time, as to give it a status of irremovability.
We have closely gone through the report of SVNIT, Surat as regards the condition of the Bridge and the scope of making it functional once again. The report speaks for itself. We deem fit to quote the report, which is as under :-
“
PREAMBLE:
For carrying out the Condition assessment of the “HOPE BRIDGE” at Chowk Bazar, Surat, Dr.Atul K.Desai, Associate Professor and Prof.Satish N.Desai, Head Applied Mechanics Department, SVNIT visited above site on 11/10/2011 along with officials from Bridge Cell, Surat Municipal Corporation, Surat, and noted following technical observations.
Observations:
1. This bridge was erected in 1876 using steel and other metals.
2. This bridge was erected using old construction technology prevailing in 1876 time.
3. This bridge was designed for wheel loads prevailing in those days.
4. M/s STUP Consultants, Mumbai carried out a survey (Year 2000) for revival of bridge. Where in they have mentioned that the superstructure is in advanced stage of corrosion and requires large scale repairs and maintenance. The cost estimate of Rs.99 Lac was given in the year 2000.
5. This bridge was damaged heavily during 1968, 1996 & 2006 Surat flood, and major portion of bridge was submerged.
6. At present as per IRC, maximum design load is 70R. Hence this bridge cannot be rehabilitated and re-strengthened for the present prevailing 70R loads.
7. Part of Foundation, pier, deck steel/metallic plate, truss, rivet were stolen, corroded and heavily damaged. (Refer report of STUP Consultants)
8. Earthquake IS: 1893 was revised nos. of times for higher level earthquake design coefficient. In no case above old bridge can sustain heavy seismic oscillation. It cannot be retrofitted for higher level earthquake.
9. The twin steel tabular and bracing connecting this pier is severely corroded and is beyond repair.
10. Wearing coat is damaged and requires total replacement at many locations.
11. Some parts of truss were already repaired in past, still in same component tilting and twisting, out of plumb alignment is observed. In no case it can further sustain any additional live loads.
12. Last top of pier on chawk bazar side was damaged. The deck and truss for this span collapsed in 2010.
13. On Rander Side super structure spans were washed away in flood.
14. The staggered pier with respect to existing R.C.C. Nehru Bridge piers are obstructing water flow in river and also increases scouring and afflux upstream side of river.
RECOMMENDATIONS :
Looking to above all point the present Hope Bridge which has undergone severe corrosion of some of load bearing components, requires large scale repairs. And in its present condition, if it cannot be used for vehicular traffic, it is advisable to dismantle it for safety of persons and safety of adjoining Nehru Bridge.
Thanking you, (Dr.A.K.Desai) (Prof.S.N.Desai) Associate Professor, Applied Mechanics Head, Applied Mechanics Deptt, SVNIT, Surat Deptt, SVNIT, Surat (M) 93274 33390 (M) 98247 87178”
We also cannot ignore the opinion expressed by the Central Water Power Resources, Pune. This Institute has opined that the Hope Bridge is damaging the foundation of Nehru Bridge and, therefore, it is advisable to dismantle the Hope Bridge.
After giving our anxious consideration to the respective contentions of the learned counsel for the parties and after going through the materials on record, more particularly, the report of the expert body as regards the feasibility of repairing the Hope Bridge and making it functional, we do not find any merit in this petition. We are not technical expert to overrule the technical opinion given by engineers and technocrats. Whether or not the Hope Bridge should be repaired and preserved as a heritage structure, or whether it should be dismantled taking into consideration other relevant factors like damage which may be caused to the adjoining Nehru Bridge, is a policy decision which is the function of the Executive. By now, it is well settled that unless the policy decision is malafide or in conflict with law, it will not be in public interest for the courts to interfere. Keeping in view this principle, we do not find it a fit case to interfere.
Approach to and scope of interference by the Court is dealt with in the case of R.D.Shetty v/s. International Airport Authority of India, reported in AIR 1979 SC 1628; Kasturilal Lakshmi Reddy v/s. State of Jammu and Kashmir, reported in AIR 1980 SC 1992 and Sachidananda Pandey v/s. State of West Bengal, reported in AIR 1987 SC 1109. Viewed in the light of the above decisions, it appears that the petitioners claim cannot stand scrutiny is by reason of the limits of judicial review by the Court.
We have noticed that the relief which has been prayed for in the petition is two fold. In the first part, it has been prayed that the respondents be restrained from dismantling the Hope Bridge and in the second part, it has been prayed that a writ or direction be issued on the respondents to look into as to whether the Hope Bridge can be declared as protected monument as defined under the Act of 1958.
In view of the fact that we are not inclined to grant the first relief as prayed for, as such it would not be necessary for us to look into the second part of the relief. However, we have thought fit to even look into the second part of the relief.
We shall look into some of the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958:
Section 2(a) defines 'ancient monument'', which means “any structure, erection or monument, or any tumulus or place of interment, or any cave, rock sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years ”
Section 2(j) defines 'protected monument', which means 'any ancient monument which is declared to be of national importance by or under this Act'.
Section 4 is with regard to power of Central Government to declare ancient monument, etc. to be of national importance. Section 4(1) reads as under :
“Where the Central Government is of opinion that any ancient monument or archaeological site and remains not included in section 3 is of national importance, it may, by notification in the Official Gazette, give two months' notice of its intention to declare such ancient monument or archaeological site and remains to be of national importance; and a copy of every such notification shall be affixed in a conspicuous place near the monument or site and remains, as the case may be.”
The words in Section 4(1) 'where the Government is of opinion' and 'it may' are distinct words of permission only. They are enabling and empowering words. They confer a right and power on the authority named to do a particular thing. In our view, petitioners have no enforceable right enabling them to mandamus. It is not possible in the circumstances of the statute to compel the repository of the power to form an opinion.
Lastly, we may quote very important observations of the Supreme Court in the well-known judgment rendered in the case of Narmada Bachao Andolan v/s. Union of India, reported in (2000)10 SCC 664, in which, in paragraph 234, the Supreme Court held as under :-
“In respect of public projects and policies which are initiated by the Government, the Courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in Public Interest to require the Court to go into and investigate those areas which are the functions of the executive. For any project which is approved after due deliberation the Court should refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertakings of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision.”
The contentions raised by the petitioners did not measure upto the test referred to above. The petition fails and is hereby dismissed. Interim relief granted earlier stands vacated forthwith. However, in the facts and circumstances of the case, there shall be no order as to costs. Civil Applications stand disposed of.
(Bhaskar Bhattacharya, Acting C.J.) /moin (J.B.Pardiwala, J.) After this order is passed, Mr.Kavina, learned senior advocate appearing on behalf of the petitioners prays for stay of operation of our order and for leave to appeal.
In view of what is stated hereinabove, we find no reason to stay the order. The prayer for grant of leave to appeal is also rejected.
(Bhaskar Bhattacharya, Acting C.J.) /moin (J.B.Pardiwala, J.)