Metro safety is not negotiable, says Delhi high court
Abhinav Garg | TNN | Jan 26, 2019, 01:32 IST
File photo of Delhi Metro.NEW DELHI: Fixing the speed limit of a Delhi Metro train on a particular track or gauging its safety is the sole privilege of Commissioner ofMetro Railway Safety and can’t be overruled through arbitration, said Delhi high court, while setting aside the Rs 4,500-crore award in favour of Reliance Infrastructure subsidiary Delhi Airport Metro Express Private Ltd (DAMEPL).
The judgment of a bench comprising justices Sanjiv Khanna and Chander Shekhar said the arbitral award “shocks conscience” and questioned the conclusion of the tribunal that a speed limit on this line had an adverse impact on the private concessionaire to such an extent that it walked away from the project.
DAMEPL had withdrawn from running Delhi Metro’s Airport Express Line over safety issues. Later, the Arbitral Tribunal faulted Delhi Metro Rail Corporation for introducing speed restrictions on a track originally touted as a high-speed line. In its May 2017 award, the tribunal accepted DAMEPL's claim that the running of operations on the line was not viable due to structural defects on the viaduct on which the train would run.
DMRC appealed in the high court against the single judge order of March 6 last year upholding the arbitral award in favour of DAMEPL. TOI first reported on January 16 that the tribunal award had been set aside.
The high court bench noted, “Safety of metro line is a matter of public importance and therefore statutory sanction/permission under the Metro Act is required.” It added that such a permission “cannot be challenged or questioned in the arbitration proceedings”.
Criticising the tribunal’s conclusion that the speed restrictions violated the contract on the Airport Express Line serving as a high-speed corridor, the court said the tribunal “did not examine the issue, and question and answer how and in what way the speed restrictions imposed would amount to ‘material adverse effect’ on DAMEPL and how and why “speed restriction would have prevented DAMEPL from performing their obligation in the agreement”.
The bench noted the tribunal had ignored the fact that the line was in use continuously after DAMEPL recommenced operations from January 22, 2013 till June 30, 2013. Also, DMRC continued to operate the service till the award pronouncement in May 2017.
“The fact that speeds were increased from time to time and numbers of trips and passengers had increased were spurned and discarded. During this period of over four years there were no problems, issues and even one accident,” the court noted, adding that in the period since DMRC took over charge in 2013, “no accident and damage to life and property has been reported and alleged”.
The court said the arbitration panel had ignored and did not consider vital evidence of certification for commercial operations accorded by CMRS while deciding the question of civil structure faults. Instead it had accepted the claim of DAMEPL that no effective steps were taken to rectify the defects. “The reasoning virtually over-rules, negates and rejects the statutory certification accorded by CMRS,” the high court said. “The Arbitral Tribunal, without reason, held that the permission accorded and subsequent satisfactory commercial operations were not relevant and inconsequential. Pertinently certification/permission was granted by CMRS after due verification of the civil structure including the defects in girders.”
Citing these, the high court termed the arbitration as “perverse, irrational and patently illegal”. The court, however, allowed both DMRC and DAMEPL to invoke the arbitration clause for a fresh adjudication on their claims and counter claims. The agreement had it that if the contract to run the Airport Line was terminated due to DAMEPL's fault, DMRC would only pay 80% of the debt, while Delhi Metro’s fault would lead to DMRC pay 100% of the debt and 130% of the equity.
The judgment of a bench comprising justices Sanjiv Khanna and Chander Shekhar said the arbitral award “shocks conscience” and questioned the conclusion of the tribunal that a speed limit on this line had an adverse impact on the private concessionaire to such an extent that it walked away from the project.
DAMEPL had withdrawn from running Delhi Metro’s Airport Express Line over safety issues. Later, the Arbitral Tribunal faulted Delhi Metro Rail Corporation for introducing speed restrictions on a track originally touted as a high-speed line. In its May 2017 award, the tribunal accepted DAMEPL's claim that the running of operations on the line was not viable due to structural defects on the viaduct on which the train would run.
DMRC appealed in the high court against the single judge order of March 6 last year upholding the arbitral award in favour of DAMEPL. TOI first reported on January 16 that the tribunal award had been set aside.
The high court bench noted, “Safety of metro line is a matter of public importance and therefore statutory sanction/permission under the Metro Act is required.” It added that such a permission “cannot be challenged or questioned in the arbitration proceedings”.
Criticising the tribunal’s conclusion that the speed restrictions violated the contract on the Airport Express Line serving as a high-speed corridor, the court said the tribunal “did not examine the issue, and question and answer how and in what way the speed restrictions imposed would amount to ‘material adverse effect’ on DAMEPL and how and why “speed restriction would have prevented DAMEPL from performing their obligation in the agreement”.
The bench noted the tribunal had ignored the fact that the line was in use continuously after DAMEPL recommenced operations from January 22, 2013 till June 30, 2013. Also, DMRC continued to operate the service till the award pronouncement in May 2017.
“The fact that speeds were increased from time to time and numbers of trips and passengers had increased were spurned and discarded. During this period of over four years there were no problems, issues and even one accident,” the court noted, adding that in the period since DMRC took over charge in 2013, “no accident and damage to life and property has been reported and alleged”.
The court said the arbitration panel had ignored and did not consider vital evidence of certification for commercial operations accorded by CMRS while deciding the question of civil structure faults. Instead it had accepted the claim of DAMEPL that no effective steps were taken to rectify the defects. “The reasoning virtually over-rules, negates and rejects the statutory certification accorded by CMRS,” the high court said. “The Arbitral Tribunal, without reason, held that the permission accorded and subsequent satisfactory commercial operations were not relevant and inconsequential. Pertinently certification/permission was granted by CMRS after due verification of the civil structure including the defects in girders.”
Citing these, the high court termed the arbitration as “perverse, irrational and patently illegal”. The court, however, allowed both DMRC and DAMEPL to invoke the arbitration clause for a fresh adjudication on their claims and counter claims. The agreement had it that if the contract to run the Airport Line was terminated due to DAMEPL's fault, DMRC would only pay 80% of the debt, while Delhi Metro’s fault would lead to DMRC pay 100% of the debt and 130% of the equity.
All Comments ()+^ Back to Top
Refrain from posting comments that are obscene, defamatory or inflammatory, and do not indulge in personal attacks, name calling or inciting hatred against any community. Help us delete comments that do not follow these guidelines by marking them offensive. Let's work together to keep the conversation civil.
HIDE