2. Heard Mr. K.K. Venugopal, learned Attorney General for India appearing on behalf of the State of Kerala, Dr. Abhishek Manu Singhvi, learned Senior Counsel for the Respondent No.1, Mr. Gopal Sankaranarayanan, learned Senior Counsel for the Respondent No.3, Mr. Jaideep Gupta, learned Senior Counsel for the Respondent No.2, Mr. Rana Mukherjee, learned Senior Counsel for the Respondent No. 9 and Mr. V. Giri, learned Senior Counsel for the Respondent Nos. 4 & 5. The impugned High Court judgment dealt with a project called the Palarivattom Flyover on the National Highway, Cochin City, State of Kerala. This was constructed by 2 Respondent No.1 and inaugurated on 12.10.2016. However, after one year of this Flyover being used, the Consultancy Agency for the Ministry of Road Transport and Highways, Government of India, on regular inspection of the bridge, reported on 16.03.2018 that the bridge was in a distressed condition with several cracks as a result of which measures should be taken to rehabilitate the flyover. The IIT, Madras, was thereafter appointed as an expert agency which delivered several reports in which, according to it, the bridge could follow a carbon fibre fabric composite treatment and be repaired instead of being demolished. Meanwhile, Dr. E. Sreedharan submitted a report to the Chief Minister of Kerala on 03.07.2019 in which he recommended the strengthening and replacement of RCC girders with PSC girders to ensure durability which would necessitate a demolition and re-construction of the bridge. Dr. E. Sreedharan, by a report dated 14.09.2019, referred to the IIT reports and did not agree with the same, stating that if his plan was to be carried out, a 100 year guarantee would be given for the newly constructed flyover.

3. Given these divergent streams of opinion, the State Government then set up a High Level Committee…..

7. After considering the arguments of counsel appearing for all parties, including the Respondent No.3- KITCO, stating that a load test is extremely necessary for the purpose of ascertaining the strength of the flyover before anything further is done to it, the High Court concluded:

“19. There is no dispute about the fact that as per the terms of contract between the parties, load test is a requirement to be performed to ascertain the strength of the bridge and to ensure that it has the expected strength. According to the contractor, though certain cracks have developed in the girders, it needs only repairs which the contractor is willing to do and it would not affect the strength of the bridge in any way. A similar view had been expressed by the consultant M/s KITCO as well. According to them, the load test is mandatory to ascertain the strength of the bridge, and if the girders and platform are demolished, such an opportunity will be lost. The Government and its authorities are not in favour of a load test since they feel that the aforesaid cracks itself are enough to arrive at a conclusion that those girders are to be demolished. Government had already taken a decision to remove the platform and girders. Once it is removed and demolished, it may not be possible to ascertain the strength of the present structure, which may prejudicially affect the right of all the stakeholders, including the Government. The contractor as well as the consultant still believes that the load test would prove that there is no requirement for demolishing the structure. Therefore, before demolishing the platform and the girders, it is better to have a load test conducted, to avoid any further controversy in the matter. After conducting such load test, it shall be open for the Government and its authorities to take a decision whether they should proceed in accordance with the manner in which they have already decided or to take a different approach in the matter. In the result, the following directions are issued.
(i) That the Government shall conduct a load test of the Palarivattom flyover through an approved qualified agency capable of conducting such a test, with notice to all the stakeholders.
(ii) The entire expenditure for conducting the load test shall be borne by the petitioner in WP (C) No. 26030/2019.
(iii) The entire process shall be completed within a period of three months or at an early date, as may be possible.
(iv) After conducting the load test, the Government shall file a statement before this Court along with the report of the concerned agency.”

8. Having perused the High Court judgment, what is clear is that the High Court, instead of applying the well-established parameters of judicial review and ascertaining whether the decision of the State Government would violate Article 14, went into the matter itself and stated that it is better to have a “load test conducted to avoid any further controversy in the matter”.

9. Given the fact that an Expert Committee, which is a High level Committee of five experts was set up to go into the divergent opinions of IIT Madras and Dr. E. Sreedharan, and the experts having come to a particular conclusion, it is very difficult then to say that the Government, in accepting such Expert Committee Report, could be said to have behaved arbitrarily. On this ground alone, we set aside the judgment of the High Court, as also the review judgment.

10. The appeals are allowed in the aforesaid terms.