IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 7016 of 2008 Between: 1 Mahadev Ganesh Kumar, S/o. Laxmi Rajam, R/o. 1-6-117, Jawahar Road, Jagitiyal, Karimnagar District. 2 Anumalla Venkateshwarlu, S/o. narsaiah, R/o. 1-6-119, Jawahar Road, Jagitiyal, Karimnagar District. 3 Jidge Purshotham, S/o. Kishan, R/o. 1-6-231 to 234, Jawahar Road, Jagitiyal, Karimnagar District. 4 Rachakonda Ramachandram, S/o. Laxmi Rajam, R/o. 1-6-276, Jawahar Road, Jagitiyal, Karimnagar District. ..... PETITIONER(S) AND 1 The Chief Engineer, National Highway & Surface Transport, Opp: Medinova, Somajiguda, Hyderabad. 2 The Municipal Council, Jagitiyal, Rep. by its Commissioner Office of Muncipality, Jagitiyal, Karimnagar District. 3 Kondapally Manohar, Rao, S/o. Narsing Rao, R/o. Opp. Gowathami Asrama Patashala, Village Gocindpally, Jagitiyal, Karimnagar District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order, directing or writ more in the nature of WRIT OF MANDAMUS declaring the action of the resondents 1 & 2 in giving the work order on nomination basis to the 3rd respndent for construction of divier on the centre of the 60' Jawahar Road, Jagitiyal, Karimnagar District from new bus stand circle to the house of former chairman Ashulu as bad, arbitrary, illegal apart from the same being in contravention of the order of this Hon'ble Court in WPMP No. 11845 of 2003 in WP No. 9250 of 2003, dated 13- 05-2003 and consequently to set aisde the same and be pleased to pass such other order or orders as this Hon'ble Court deem fit and proper in the circumstance of the case. Counsel for the Petitioner:MISS.PALLERLA ARUNA Counsel for the Respondent No.: MR.RADHA KRISHNA POLISETTY (SC FOR MPL) The Court made the following ORDER : This writ petition has been instituted seeking a Writ of Mandamus to declare the action of the respondents in granting a work order on nomination basis to the 3rd respondent for construction of road divider on Jawahar Road, Jagitial, Karimnagar District as arbitrary. The petitioners are all residents of Jagitial town and they are tax payers. In Jagitial town, Jawahar road is one of the important roads. It varies in its width from 60 ft to 80 ft at various points. It is forming part of the National Highway No.16. The petitioners allege that there was proposal to widen the existing Jawahar road to 100 ft. That proposed road widening has been mostly opposed as the houses constructed on either side will be badly affected by the uncalled for widening of the road. With a view to coerce the owners of the houses on either side of the road, the road dividers are sought to be constructed as the road divider would make it difficult for the road users to use only the remaining portion and consequently the house owners will concede to the demand for widening of the road. Thus, the petitioners allege that the work undertaken of construction of road dividers is not for any bonafide purposes and it is undertaken for achieving an oblique purpose. This apart, the construction of the road divider work has been granted in favour of the 3rd respondent at a huge cost as he happens to be a close relative of the Chair-person of the local municipality, without calling for tenders. Therefore, the action of the respondents in chosing the 3rd respondent and entrusting him the work of construction of road dividers is totally for extraneous reasons and considerations than for the merit of the matter. The writ petitioners have also drawn my attention to an interlocutory order passed by this Court on 13.5.2003 in WPMP No. 11845 of 2003 in WP No. 9250 of 2003, by which order this Court directed the respondents therein not to demolish the houses of the petitioners and similarly situated persons in Jagitial town in connection with the widening of the existing Jawahar road without giving individual notices and without acquiring the land and without paying the compensation to the owners of the properties pending further orders. The learned counsel for the petitioner Ms. Aruna would contend that in view of the aforementioned interim order passed by this Court, the respondents have devised this method of constructing the road divider in the middle of the existing Jawahar road so that the owners of the buildings on either side would find it difficult to resist and concede to the demand for widening of the road. Therefore, she contends that the entire exercise is smacking of illegalities from the very beginning. I have heard the learned Govt. Pleader for Roads and Buildings, and the learned Standing Counsel for Jagitial Municipality in the matter. The learned Govt Pleader has also produced the record. The learned Govt Pleader would contend that the Executive Engineer of the Roads and Buildings Department of the National Highways Division, Perkit had floated chit tender notice on 6.8.2007 inviting sealed tenders for providing central meridian from Kms 97/0 upto 98/6 from all such Class V and above civil contractors. Therefore, he stoutly disputed the very basis for the institution of the above writ petition by demonstrating that without public guage the work of constructing the road meridians in the form of road divider has been conferred upon the 3rd respondent. The learned Govt Pleader has also pointed out that the Executive Engineer is the competent authority for the purpose of awarding works of the value upto Rs.10 lakhs and that the award of the work of construction of the road meridians has in fact been accomplished most transparently. He has drawn my attention to the specific averment of facts set out at para 6 of the counter affidavit filed by the Executive Engineer/R&B Department, National Highway Division, Perkit wherein it was pointed out that the proposal relating to the work has been forwarded to the Superintending Engineer on 5.8.2007 and the Superintending Engineer in turn forwarded the same to the Chief Engineer on 28.9.2007 and the Chief Engineer after considering the urgency in the matter of construction of the road meridian in view of the safety of the public and for controlling the sudden increased vehicular traffic volume on the road, had sanctioned for provision of the central road meridian between Kms 97/2 to 98/6 on 12.10.2007. The work was therefore awarded in favour of the unofficial respondent, whose offer was found to be the most competitive. The learned Govt Pleader would submit that the vehicular traffic on Jawahar road had increased enormously in recent times and consequently the safety of the general public who use the road had become a top priority. Learned Government Pleader would emphasize that increase in vehicular traffic is bound to bring along with enormous traffic hazards including major and minor accidents and with each accident the flow of vehicular traffic itself poses great problem for the road users. He therefore contends that construction of the central road meridian on Jawahar road has been undertaken prompted by the element of public interest and that it has nothing to do with any other factor much less the factor of granting any benefit to the unofficial respondent. The learned Government Pleader has also produced the records to show as to how pursuant to the tenders that have been floated on 6.8.2007 the process of awarding the work in favour of the 4th respondent has been taken up and the entire exercise is not only carried in open and public guage, but has also been bought to the notice of the superiors of the Executive Engineer viz., Superintending Engineer and Engineer in Chief respectively. He therefore contends that there is no basis much less valid ground for the writ petition and the same deserves to be dismissed. The learned Standing Counsel Sri Polisetti Radhakrishna contends that Jagitial town is one of the important towns in Karimnagar District and it had been witnessing phenomenal development all around and that there was enormous increase of vehicular traffic in the town and consequently several accidents have been reported to be taking place on Jawahar road. Sri Radhakrishna would point out that some of the accidents have proved to be fatal accidents as well. Therefore it is very important for the 2nd respondent – Jagitial Municipal Council to decide for construction of road divider on this thoroughfare. He stoutly denied any improper motives either in the decision relating to the construction of the road dividers or in the matter of awarding the work of its construction to the unofficial respondent. I have given my anxious consideration to the rival submissions. How far construction of central road meridians would help systematic and free flow of vehicular traffic without causing any risk to the road users is a value judgment of the official respondents. Even if it is capable of yielding to a debate, even then I am not liable to substitute my opinion to that of the executive. Until and unless the decision to construct the road meridians is considered to be a perverse decision, it cannot be interfered with. Where there are two views possible on any matter, the courts are always slow to substitute their opinion to that of the State. The usefulness and the efficacy of construction of the road dividers and its positive contribution to the free flow of vehicular traffic is therefore one of the two possible views on the subject and hence it cannot be described as a perverse or utterly useless decision resulting in wastage of precious resources of the State. The construction of the road dividers would reduce the availability of the road space to the road users is one of the several opinions on the subject. I therefore cannot agree with the submission of the learned counsel for the petitioners that the execution of the construction of road dividers on Jawahar road of Jagitial town to be a perverse exercise. When once the Executive Engineer of the R&B had floated a chit tender on 6.8.2007 inviting tenders from Class V and above classes of civil contractors, he had done everything strictly in accordance with law. When once an open tender is floated, it cannot be alleged that the award of work is shrouded in mystery. If the chit tender floated by the Executive Engineer had not caught the imagination of the petitioners, the fault does not in that regard lie with the State. Possibly, the petitioners not being civil contractors would not have cared to notice the tender floated by the Executive Engineer in that regard. The files produced by the learned Government Pleader would undoubtedly disclose the response to the tender floated and subsequent transparent evaluation of the offers. The unofficial respondent has been chosen not for any extraneous reasons, but based upon the competitiveness of his offer. I have no doubt in my mind that the Executive Engineer of the R&B Department of the National Highways, Perkit Division would do all that is necessary to ensure that the execution of the work by the unofficial respondent in this regard would be in strict conformity and in compliance with the specifications prescribed therefore. Before I part with this case, I would like to observe that there is no valid explanation offered by the Executive Engineer as to why the work of construction of the central road meridian between Kms 97/2 to Kms 98/6 has been split into two parts. The tender floated divided it as 1st work between Kms 97/2 to 98/0 and the 2nd work is between Kms 98/0 to 98/6 of Nizamabad – Jagdalpur road of NH 16, while the amount of estimate for the 1st work is Rs.4.58 lakhs and the estimate for the 2nd work is Rs.4.51 lakhs. Except saying that the work is divided into two parts, to secure, possibly two separate contractors executing the work which would enable the work to be completed quickly, there is no other explanation offered in that regard. Perhaps the Engineer in Chief will look into this aspect of matter so as to put in place the necessary measures for purposes of correcting any improper exercise of discretion in that regard. I do not find any merit in this writ petition and it is accordingly dismissed, but, however, without costs. Dt : 21.04.2008 ----------------------------------------------- JUSTICE NOOTY RAMAMOHANA RAO Knk ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{MJ}