In a Public Interest Litigation (PIL) at the High Court of Karnataka, the CMH Road Shops and Traders’ Association has challenged the legality of the Metro Rail Project implemented by the BMRC (Bangalore Metro Rail Corporation). On 18th and 20th August, Justice Gopala Gowda and Chief Justice P D Dinakaran heard legal arguments. Citizen Matters has been following the proceedings.

Is the Metro legal? Government: ‘yes’, Traders: ‘no’

Pramila Nesargi, legal counsel representing the CMH Road traders, argued that in both Kolkata and Delhi, the metro was constructed after the passage of the “Metro Railways Construction of Works Act”. This Act has been not yet been ratified by the state government. This act lays down the manner in which works are to be carried out and how the land must be acquired. Pramila stated that any work, which the BMRC undertakes without the existence of this Act, can be deemed as illegal.

Work goes on in the middle of CMH Road. Pic: Zainab Bawa.

She said that even when the Metro is being constructed under the 1906 Mysore Tramways Act, the provisions of the Act require “prior state approval”; the state government must issue an order for carrying out the works. The provisions of the Act state that, “Tramways shall be constructed in accordance with the procedures laid down in the order.” But, she argued, the state government cabinet has issued no order for carrying out the works. According to the Act, the orders have to be published in both English and Kannada in the Gazette. This has also not been done.

BMRC is now taking shelter under section 47 of the Tramways Act, which confers special powers on the state to carry out the works. But, Pramila contended that this section confers special powers only to the state for carrying out the works whereas the BMRC is a Special Purpose Vehicle (SPV) and is therefore not the state.

Justice V Gopala Gowda and BMRC’s counsel N Murthy countered that even though the BMRC is a SPV, it has been constituted by the state government in which case it can execute the special powers. However, Pramila opposed this proposition by stating that even when special powers have to be exercised, there has to be an order by the state government to the effect. “But there is no order,” she exclaimed.

Merits of traders’ argument

While Justice Gopala Gowda and Chief Justice P D Dinakaran acknowledged some of the merits in Nesargi’s argument, they clearly seemed to be in a dilemma about making a decision. In the past, the judiciary has been over cautious about treading on the decisions made by the executive. To counter Pramila’s contention about the illegality of the works, Justice Gowda cited from the BMRC documents submitted to the court that the central government had in fact framed the terms and conditions for the manner in which the construction can be carried out.

But Pramila argued that even though the terms and conditions have been framed by the Government of India, no legislation has been passed to the effect. “We are not living in a state of anarchy or in a state where the law of the jungle prevails. We want sustained development, orderly development,” she pleaded before the court.

The traders also questioned whether the Metro Rail is a tramway or a railway. Pramila argued that a tramway is a train which runs on the ground and in a circle. But the Metro rail is going to run over the ground at most places and underground at some other places. In this respect, the Metro is not a tramway, but clearly a railway. If the Metro is a railway, it should run on broad gauge as specified by the Indian railways, Pramila pointed out.

But the BMRC is implementing standard gauge, which will have to be imported from abroad. To this, Nesargi said that the standard gauge technology has to be replaced periodically. She stated that in New York City too, the standard gauge technology is now being replaced and the Metro is being reconstructed. “Will the BMRC change the standard gauge after 25 years?” she asked the court.

Cost and benefits for the public

Further, the traders argued that the Metro Rail is an expensive project and is a drain on the taxes that the public pays. It therefore needs to be questioned and viable alternatives have to be developed. Nesargi stated that even the state’s finance secretary is not in favour of this project. But Chief Justice Dinakaran immediately responded stating that the finance secretary is not the executive and that the courts are mainly concerned with the state government and its decisions.

Justice Gowda and Chief Justice Dinakaran stated that this case is important and needs to be probed further. They have now asked Nesargi to furnish an exhaustive list of grievances that the Metro Rail is causing and is likely to cause in the future to the publics. They have also asked her to relook at and re-confirm the legal aspects of her arguments about the illegality of the project.

The judges have further directed the Government of Karnataka counsel Uday Holla to submit all the documents that suggest that the GoK has indeed issued orders and that the works that are being carried out are not illegal. All this indicates that the judges will now base their decisions not purely on the legality of this project, but also by interpreting the impacts of the Metro on the publics.

Meanwhile…

The narrow width of CMH road is making it difficult for the crane to move. Last week, the crane knocked off the signboard of one of the commercial buildings on the road. The traders and residents of the road now fear that the BMRC will need to acquire more land than originally planned for carrying out the works. Some residents are in touch with residents of Ghatkopar area in Mumbai where Reliance Industries is constructing the Metro Rail.

They say that at Ghatkopar, Reliance first suggested that it required only 60 feet of road space. But after beginning works, Reliance is asking for more space, thereby impinging on the private property of residents. On condition of anonymity, one person said that while residents of the CMH Road area were not keen to participate in the traders’ agitation against the Metro, they are now worried about what might happen in future.

In the meantime, the designs for stations on M G Road, CMH Road, Trinity Circle and Byappanahalli are now ready. The BMRC says that the station designs are “not sacrosanct” and will in fact change depending on the land that it can acquire in these and other areas.

Decision on September 1

The justices posted the hearing for September 1. They appear to be concerned about doing justice to the aggrieved parties. When the ruling comes, it may be an important day not only for the traders of CMH Road but also for traders with similar concerns in other economic hubs of the city (where the Metro is to come), such as MKK Road and Chickpet. ⊕