W.P.(C) No.3614/2010 Page 1 of 30 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 5th August, 2010 Judgment Delivered On: 1st September, 2010 + W.P.(C) NO.3614/2010 UNION OF INDIA & ORS. ..... Petitioners Through: Mr.R.V.Sinha, Advocate and Mr.R.N.Singh, Advocate versus A.K.VERMA .....Respondent Through: Mr.Prashant Bhushan, Sr.Advocate with Mr.Pranav Sachdeva and Ms.Poulami Putatunda Pyoli, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. With a view to provide an alternative and reliable transport system in the State of Jammu and Kashmir in the year 2002 Government of India planned a 345 km long railway line. The line was to join the Kashmir Valley with the Indian Railways network. The project known as “Jammu-Udhampur- Srinagar-Baramulla Rail Link Project” (hereinafter referred to as “JUSBRL Project”) is of strategic importance and is intended to provide quick access within the State of Jammu and Kashmir and serve as an alternative to road transport on National Highway – 1A on which the traffic is frequently disrupted by landslides and snow avalanches. W.P.(C) No.3614/2010 Page 2 of 30 2. For a speedy execution of the project, the task of survey, field investigations, design and construction was entrusted to three public sector units; namely, Konkan Railway Corporation Limited (hereinafter referred to as the “KRCL”), Indian Railway Construction Company (hereinafter referred to as the “IRCON”) and Rail India Technical and Economic Services (hereinafter referred to as the “RITES”). Whereas KRCL and IRCON were required to finalize the alignment, prepare design of tunnels, bridges etc. and carry out construction activities through sub- contractors who were to be appointed through tendering process, RITES was required to assist KRCL and IRCON in the matters of surveys and investigations and preparation of designs. The Northern Railway was entrusted with the supervisory role and overall responsibility of execution of the project. 3. Based on the topography of the area, the project was divided into three sections; namely: (i) Udhampur – Katra section; (ii) Katra – Qazigund section; and (iii) Qazigund – Baramulla section. Whereas the work in Udhampur – Katra and Qazigund – Baramulla sections was progressing at rapid speed the work in Katra – Qazigand section was still in the initial stages of execution on the date of proposed completion of the project. It be noted here that a uniform ruling gradient of 1 in 100 was chosen as the alignment of Katra – Qazigand section. 4. On 19.09.2003 Mr.B.Rajaram, Managing Director KRCL, wrote a letter to petitioner No.2, who was then posted as Chief Administrative Officer, Northern Railways, wherein he expressed serious doubts regarding the suitability of the alignment chosen for Katra – Qazigand section. The relevant portion of the said letter reads as under:- W.P.(C) No.3614/2010 Page 3 of 30 “……The paper alignment without even preliminary ground reconnaissance, without initial digging but only proceeding with partial surveys with partial ground details and then going ahead with calling of tenders and committing the national resources is causing a serious concern to me. We may be in a hurry, but without first (illegible) even by simple engineering survey the ground details, launching on construction from either end is fraught with serious consequences. We may end up with infructuous expenditure, and at the same time we also are not giving (illegible) picture, in terms either of cost or time. It is only with an indication to help things out, I had to explore the alternatives as well as examine the paper alignment also whether we can comfortably proceed with the same. The results are not too encouraging…… …..After matching with the levels, we get an alignment, which actually becomes half the length and reduces the number of portals to only about 8 and the bridges also to just about 2 nos. Initially, when this was presented as a concept, a view was taken that there were no ground details, and also any way we cannot accept 1 in 50 gradient. There is no reason why 1 in 50 gradient cannot be managed. Technical mitigation measures are available. As far as ground details are concerned, this work has also been completed. I am happy that we have no completed survey report as per our Engineering code with ground details and it is easily located on the ground. Experts in geo technical as well as environmental areas have concurred. The thrust areas are avoided. The alignment is shifted away from the Line of control and it has many more advantages in terms of security and safety. In fact, from Katra to Qazigund the travel time gets reduced to 1/4th of the current paper alignment. I estimate the saving of at least Rs.3000 crores when we adopted this alternative alignment. The question arises as to why we should not examine the alternative honestly in the interest of the nation. In fact the safety concern of the tunnels is very real and with my experience on Konkan Railway single line tunnels, in case of hazards, W.P.(C) No.3614/2010 Page 4 of 30 create very serious problems. In the alternative alignment these issues also are addressed. If I am in your position I would rather have a committee of Sr. Expert Engineers, Operating Signal engineers as well as geo technical experts and Commission of Railway Safety with a Finance representative, and a defence representative to jointly examine the alternative and take a view……” 5. In view of the apprehensions expressed by Mr.B.Rajaram, the then General Manager Northern Railway set up a Task Force to review the alignment chosen for Katra – Qazigand section. The said Task Force comprised of SAG officers of all the concerned departments and the respondent, who was then working as Chief Engineer/Construction/NEC was appointed as the Convener of the said Task Force. The said Task Force submitted its report in the year 2005 and approved the existing alignment i.e. alignment with ruling gradient of 1:100. 6. On 18.07.2005, Mr.R.K.Singh, Chairman Railway Board and Ex-Officio Principal Secretary, Ministry of Railways, Government of India, wrote a letter to the respondent as under:- “A comprehensive review of the operational, maintenance and safety requirements vis-à-vis the provision in the DPR has been carried out by the Northern Railway. As the Chief Engineer in charge of the section of the region where most of the construction problems were going to arise due to the difficult terrain and adverse geology that necessitated a review and additional measures, you have ably projected the need for review and additional measures, and then as the convener of the Task Force that was set up to review the provisions of the DPR, you have helped formulate options, examine their feasibility, and steered the recommendations of the Task Force to the stage of their approval by the General Manager/Northern Railway and apprising the Railway Board. This is in W.P.(C) No.3614/2010 Page 5 of 30 recognition of the good work done by you.” (Emphasis Supplied)” 7. In or around March 2006, the then Member Engineering, Railway Board, deputed the respondent to undergo a nine- month course in Public Administration at Indian Institute of Public Administration, New Delhi. Relevant would it be to note that the respondent was not associated with USBRL Project after he finished the aforesaid course. However, in view of the fact that the respondent had carried a detailed study regarding the alignment of Katra – Qazigand section, he was given an opportunity to give a presentation to the Railway Board on 08.11.2007. In his presentation, the respondent pointed out many flaws in the alignment with ruling gradient of 1:100 chosen for Katra – Qazigand section. The respondent emphasized that the flaws pointed out by him in the alignment with ruling gradient of 1: 100 would mar the carrying capacity of the line, its competitiveness with the other modes of the transport as also seriously compromise the basic human needs of safety, security and comfort while travelling. The respondent stressed that the alignment with ruling gradient of 1:100 should be changed and the alignment with ruling gradient of 1 in 50 with some stretches of 3 to 5 km on gradient up to 1 in 44 should be adopted. 8. In light of the presentation made by the respondent, Member Engineering, Railway Board directed Northern Railway to examine the new alignment suggested by the respondent. 9. On 04.12.2007 Mr.B.P.Khare, the then Chief Administrative Officer, Construction – II wrote a letter to the Railway Board, the relevant portion whereof reads as under:- “…..2.0 Presentation made by Alok Verma, CE/BWS/HQ/NR W.P.(C) No.3614/2010 Page 6 of 30 Shri A.K. Verma, SAG Officer has worked on this project for two years and he has also collected data on the railway lines constructed/under construction on the hilly terrain on the other part of world. A presentation was made by Shri Verma on 8th November’2007 in the Railway Board where ME, AM (Works), AM (Elect.), ED (TT), CAO-C-II/INR and other SAG/JAG Officers were present. During the presentation, Shri Verma brought out the following shortcomings of the existing alignment: …… At the end of the presentation, the Northern Railway was directed to examine the new alignment. 3.0 Modified alignment with a steeper ruling gradient of 1 in 50 The proposed alignment with a steeper ruling gradient of 1 in 50 (compensated) has been examined based on the toposheet and satellite imageries. A rapid and quick examination indicates that the alignment from Katra (km 30) to Banihal (km 154) is feasible with ruling gradient of 1 in 50 (compensated)……. The salient features of this alignment are as under: …. (v) The cost of the line will be less. (vi) Alignment will be mostly straight thus enhancing safety level. (vii) Due to less number of bridges and tunnel portals the security requirement will be less. (viii) Lesser operation and maintenance cost is expected. …. 5.0 The Proposal After a rapid examination of the toposheets it is found that a gradient of 1 in 50 (compensated) is feasible between Km.30 to Banihal….. The existing alignment is single line between Katra and Qazigand. In the long tunnels (>3 KM) a 3m W.P.(C) No.3614/2010 Page 7 of 30 wide road has been proposed to provide rescue and relief during accidents and emergencies. This type of relief and rescue operations has its own limitations. It is, therefore, proposed that two line track be laid in the portion where alignment is proposed to be modified. The system can work as double line or twin single lines. The cost of the two line track between Km30 and Banihal will be Rs.6455 crores against the present estimate of Rs.7250 crores for single line. Thus it will be seen that the cost of new proposal with two lines will be slightly less than as compared to existing estimated cost. …. The provision of two lines will greatly enhance the line capacity and would enable Railways to provide an efficient rail based rescue and relief operations during accidents. …. It is, therefore, proposed to carry out a detailed investigation of the alignment proposed with a gradient of 1 in 50. 6.0 Approval required from the Railway Board In view of the foregoing, the Railway Board is requested to approve the following: a) Northern Railway’s proposal for a fresh alignment survey alongwith Geological feasibility chargeable for the present work. b) Authorize Northern Railway to instruct M/s KRCL and M/s IRCON not to enter into fresh commitment for works on existing alignment. c) Authorize Northern Railway to instruct M/s KRCL and M/s IRCON to keep the execution of works under the existing contracts under abeyance; progress of which will lead to infructuous expenditure in case new alignment with grade 1 in 50 is finally adopted….” W.P.(C) No.3614/2010 Page 8 of 30 10. Pursuant thereto, petitioner No.2, who was then posted as General Manager, Southern Railway wrote a letter to Mr.S.K.Vij, Member Engineering, Railway Board, relevant portion whereof reads as under:- “….While I was in the Board during my last visit, I overheard that re-alignment of URBRL is being considered. I would request that my views on this are also taken particularly since I think I have been on this project for the longest period and, I do know about how and when these alignments were fixed….” 11. Thereafter on 28.01.2008, petitioner No.2 again wrote a letter to S.K.Vij, Member Engineering, Railway Board, which letter reads as under:- “I have gone through the proposal for modification of alignment between Katra and Qazigand, submitted by Shri Alok Kumar, CE/BWS/HQ….. I have gone through the copy of the presentation. It is a very good work of research done in posterity and highly theoretical with hindsight wisdom. To my mind, the issues dealt with, have been scratched only on surface. Social issues, particularly for the state of Jammu & Kashmir, and for the reason for which this alignment has been accepted, have been totally excluded from the presentation and analysis. There are some aspects of terrorism and national security associated with this alignment, which need to be appreciated and which cannot be really put down on a piece of paper. Some of these together with allied roadways construction will prove fruitful for the above purpose. Besides it, the economic development of this hinterland hitherto unconnected has been a great strength of this alignment. It is what is need desperately today. W.P.(C) No.3614/2010 Page 9 of 30 Insofar as the costing is concerned, the presentation speaks of only the cost of tunnels and that too in comparison with those made in China. I am not sure about the correctness of the cost in so far as the Chinese construction methodology and project is concerned as it is not well known to us. Also at the same time, it is important to realize that the total cost would be increasing and in this case of the revised alignment, the rolling stock, engines and systems are required to be purchased new for this new alignment. Can Indian Railways afford this? Moreover, for 200 kms, the costs are well known to us. Then where is the comparison? To my mind, it is absurd. More over, the proposal he has made are quite akin to the one which Mr.Rajaram as Managing Director of KRCL had made in the beginning before taking up Konkan Railway portion of the works. The Board has discussed examined and rejected it. It is also necessary to mention that the present proposal in respect of the grade etc. has also been cleared by CCEA and the matter apparently has been debated there also. Any change in the proposal at this stage would mean going back to CCEA. In any project, any hindsight improvements can always be pointed out. But it is important that once a large project, as this one has put in a firm footing, where the works have started, then pessimism of any nature in the execution of the work is not allowed, as it only causes concerns, confusion and delays leading to time and cost overruns. It is however accepted that small changes will continue to be necessary and made, from site to site and location to location. Those can certainly be extracted out of the presentation and used wherever necessary. However methods of construction suggested have all been examined at various stages in the life of the project. As far as, the tunnel aspects regarding curves etc is concerned, these issues too have been dealt with critically earlier and thereafter only conscientious decisions have been taken. W.P.(C) No.3614/2010 Page 10 of 30 As engineers, we are required to take up the problems upfront and solve them and not shy away, by changing total alignments. It is better to confront a known devil than an unknown one through such a change. Therefore, in my view and with the above points kept in mind, the surprise recommendation of CAO/CN/II/N.Rly in his letter to ED/Works under para 6.0 are required to be immediately dropped and orders given for continuing with the work with minor modifications as may be necessary. Lost of stopping the works itself is several hundreds of crores per year.” 12. On 30.07.2008, Mr.S.Prakash, petitioner No.4, who was then posted as General Manager, Northern Railway, wrote a letter to Mr.S.K.Vij, Member Engineering, Railway Board, regarding the proposed alignment of Katra-Qazigand section as proposed by respondent, the relevant portion whereof reads as under:- “….9. The decision of Board for pending all works on the section from Km.34 to Km.126 is perhaps based on the consideration of adopting the new alignment on steeper gradient of 1:50 in place of existing ruling gradient of 1:100. The Railway Board has already decided to follow the grade of maximum of 1:60 from Kms.126 to 150 and has asked IRCON to submit the revised alignment proposal. 10. At this stage changing the alignment from Km.34 to Km.154 and providing maximum grade of 1:60 or 1:50 will have immense operational problems….. 12. The issue of new alignment was discussed in a Brain Storming Session held in Northern Railway on 23.06.2008. This session was attended by the eminent scientists who are experts in tunneling and were actively involved in projects in lower Himalayas. The session was also attended by the eminent Engineers, including retired Members – Engineering and General Managers….. W.P.(C) No.3614/2010 Page 11 of 30 13. After detailed discussion, the brain storming session concluded that the existing alignment which takes into consideration the operator’s requirement, should continue with small alignment corrections of the steeper gradients on small stretches to over come the local construction difficulties. 14. Almost all the participants of the brain storming session held on 23.06.2008 had a unanimous view that existing alignment should continue with some changes, at identified locations where steeper gradients can be provided at small stretch. 15. The geological conditions of the region are almost the same everywhere and does not vary widely. Almost the entire area is inaccessible and we do not have full and specific geological information along the alignment. It is, therefore, prudent not to make major alignment corrections considering the past experience of tunneling in the region. It is more so because the geological information along the suggested alignment is not known…. 18. As has been already stated that the existing alignment based on ruling gradient of 1:100 is based on the operational requirements. It would be extremely difficult to run heavier freight trains on a steep gradient of 1:60 as proposed in the new alignment particularly so, the rising gradient is in the loaded direction. 19. Along with the increase in cost of operation on steeper gradient, the cost of maintenance of track and related infrastructure, would be abnormally high. 20. The existing alignment also takes care of the growth of the area and its economic development. Any change in the present alignment would deprive the people of the area of their development. In fact there has been already resentment in the area against the stoppage of work due to the proposed change of alignment. 21. It is therefore, requested that Board may: W.P.(C) No.3614/2010 Page 12 of 30 i) Permit the restart of works in the section from Km 34 to Km 126 as per the approved alignment. ii) Reconsider the decision of changing the alignment from Km 126 to Km 150 and iii) Restore the alignment on the entire stretch of Katra-Qzaigand Section, with minor corrections, as requested by the IRCON and KRCL….” 13. Vide Office Order No.ERB-I/2008/23/36 dated 10.12.2008, the Railway Board decided to constitute a Committee to study various issues involved in the alignment of Katra-Qazigand section. Further, the respondent was given an opportunity to make a presentation pertaining to the alignment suggested by him to the said committee and IRCON was directed to appoint a consultant to study the present and proposed alignment. As per the request of Mr.S.K.Vij, Member Engineering, Railway Board, vide Office Order No.2008/IRSE/466 dated 17.10.2008 issued by the Northern Railway, the respondent was appointed as a member of the said Committee. Vide Office Order No.86/W2/NL/N/25 Pt.IV dated 10.11.2008 issued by the Northern Railway, the respondent was appointed as Nodal Officer and required to co-ordinate with IRCON and the consultant appointed by IRCON. 14. On 14.03.2009 Mr.S.K.Vij, Member Engineering, Railway Board, prepared a detailed note regarding the alignment of Katra-Qazigand section for the consideration by the Minister of Railways. In the said note Mr.S.K.Vij pointed out that the present alignment with a ruling gradient of 1:100 is flawed; that the modified alignment with a ruling gradient of 1:50 proposed by the respondent is more suitable and should be adopted; that Northern Railway is not satisfactorily dealing with the issue of alignment of Katra-Qazigand section and that W.P.(C) No.3614/2010 Page 13 of 30 the consultant appointed by IRCON who was entrusted with the task of examining the stability and safety risks on the present alignment as also to examine more appropriate concepts for a revised alignment has not worked satisfactorily. 15. On 24.03.2009 the respondent wrote a letter to Chief Administrative Officer, Construction – II, Northern Railway, the relevant portion whereof reads as under:- “I have prepared a technical note (Copy enclosed) to draw attention to what is indicated by the world practice and the body of scientific knowledge to be the most important requirement that should be met by an alignment of a rail line in a high relief mountainous region…… Yet, despite its importance this is missing from the solutions being suggested by IRCON and KRCL and now even by the foreign consultant who was engaged to study the alignment issues. The problems caused by this flaw are getting ignored, or belittled. On this project, recent experience on Udhampur – Katra line which runs along the folding axis is a reminder. The construction problems being faced on this section may delay opening of this 25 km long section by over five years. …. In the last six months, increasingly view is being taken by both IRCON and KRCL that it is possible to make a line on the present alignment with some local changes, not realizing that with such changes it shall not be possible to overcome the basic flaw of the alignment lying along with folding axis in considerable lengths. M/s Amberg were engaged by IRCON on directives of Railway Board to associate with Northern Railway for studying the present alignment and examining new alignment concepts. The consultant has made the statement in his presentation to the Expert Committee that the present alignment can be made to work by retaining portions where work is in progress and changing the alignment in the remaining portions by just shifting it deeper into the mountains. For a W.P.(C) No.3614/2010 Page 14 of 30 new alignment solution, the consultant has proposed an alignment that also runs parallel to the folding planes, and also skirts the slopes in significant lengths. Despite my best efforts as nodal officer, the consultant has not answered questions about stability and safety on the alignment solutions proposed by him. Undoubtedly, it is absolutely necessary to overcome the problems posed by this very challenging terrain for building a workable line that will also survive the extremely adverse natural environment in this remote inhospitable region. But, this does not seem possible if the above basic requirement based on long experience and scientific studies is ignored…..” (Emphasis Supplied) 16. On 30.03.2009 Mr.S.K.Vij, Member Engineering, Railway Board wrote a letter to Mr.E.Sreedharan, Managing Director, Delhi Metro Rail Corporation Ltd seeking his views on the new alignment of Katra-Qazigand section proposed by the respondent. 17. On the same day i.e. 30.03.2009 Mr.S.K.Vij wrote a letter to the respondent, the relevant portion whereof reads as under:- “You have worked with utmost diligence and dedication for acquiring an understanding of the basic causes of the problems that have been faced with the present alignment in the above part of the project. Your 1st presentation to