Bombay High Court
Mr. Owais Anwar Pechkar vs The Union Of India And Ors on 6 June, 2022
Author: M. S. Karnik
Bench: Dipankar Datta, M. S. Karnik
15.pil 19.21.doc
Diksha Rane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
CIVIL APPELLATE JURISDICTION
DIKSHA
DIKSHA DINESH
PUBLIC INTEREST LITIGATION NO.19 OF 2021
DINESH RANE
RANE Date:
2022.06.16
20:43:59
+0530
WITH
CONTEMPT PETITION NO. 474 OF 2021
Mr. Qwais Anwar Pechkar .. Petitioner
Vs.
The Union of India and ors. .. Respondents
------------
Mr. Owais Pechkar, petitioner-in-person in PIL19/2021 & CP/
474/2021.
Mr. Ashutosh A. Kumbhakoni, AG a/w. Mr. P. P. Kakade, GP
a/w. Mr. M. M. Pabale, AGP for State.
Mr. Y. R. Mishra a/w. Ms. Anusha Amin for respondent no.1-
UOI in PIL/19/2021.
Mr. Pranil Sonawane a/w. Mr. Ashutosh Mishra for
respondent no.1-UOI in CP/474/2021.
Mr. Rakesh Singh a/w. Ms. Heena Shaikh i/b. M. V. Kini &
Co. for respondent no.2 - NHAI.
Mr. Shreyas Shrivastava a/w. Mr. Yogesh M. Devnani for
respondent no.12 in PIL/19/2021.
------------
CORAM : DIPANKAR DATTA, CJ &
M. S. KARNIK, J.
DATE : JUNE 6, 2022
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15.pil 19.21.doc
P.C. :
1. The concern expressed by the petitioner in this Public Interest Litigation ('PIL' for short) is with regard to the unreasonably long time taken to complete the work related to reconstruction/new construction of the Mumbai-Goa Highway. This PIL is primarily instituted to facilitate expeditious completion thereof.
2. The PIL was heard on several occasions in the past. Mr. Ashutosh A. Kumbhakoni, learned Advocate General appearing for the State of Maharashtra, placed before us reports to show the progress made from time to time to widen this highway connecting Mumbai with Goa. Based on such reports submitted, suitable directions were issued by this Court. The last such work progress report placed for our consideration was dated March 6, 2022 which we have referred to in our order dated March 7, 2022.
3. Mr. Kumbhakoni has today placed before us a work progress report of widening of Mumbai-Goa National Highway No.66 ('NH-66' for short) as on June 5, 2022. Such report indicates the following position with regard to the present status of the completed work and timeline for completion of balance length: -
215.pil 19.21.doc Present status of Completed Work and Timeline for completion of Balance Length.
District Raigad Ratnagiri Sindhudurga Total Length (Km) 70.6 km 213.00 Km 82.87 Km 366.17 Km Total Length 74.467 198.528 82.285 355.280 (Design Km) Km No. of Packages 3 5 2 10 Length 47.450 Km 109.552 82.285 Km 239.257 Completed Km Km Length 27.017 Km 88.976 Km 0.00 Km 115.993 Maintained Km with BT (Pothole Free) Target of May 2023 Dec 2023 April 2022 Dec 2023 completion of entire length
4. The report further indicates a detailed break-up in respect of the work carried out for NH-66 and its status as on June 5, 2022. So far as Package No. 8 of the stretch 332/200 Km to 367/300 Km (Waked - Talgaon); Package No.9 of the stretch 367/300 Km to 406/000 Km (Talgaon to Kalmath); Package No.10 concerning 406/000 Km to 450/170 Km (Kalmath to Zarap), the report indicates that the work is 100% completed. So far as Package Nos. 2, 3 and 4 are concerned, the work is more than 75% completed. It is pointed out that such packages where the work 75% or more is completed, the same have been opened up for traffic after obtaining the necessary clearances. So far as these packages (2, 3 and 4) are concerned, Mr. Kumbhakoni and Mr. Rakesh Singh, learned counsel appearing on behalf of the respondent no.2 -
315.pil 19.21.doc National Highway Authority of India (NHAI) have submitted that remaining work, if any, will be completed by the target date of completion as mentioned in the report. Statement is accepted.
5. So far Package Nos. 4, 5 and 6, it is pointed out that some issues arose which hindered the progress of construction activities on these stretches. As regards Package No. 3, it is submitted that though 79.33% work is completed, the balance work will take some time as presently the work of 1.84 km long tunnel is in progress which is time consuming. Nevertheless, learned counsel assures that the work in respect of Package No. 3 will be completed on or before the target date of completion i.e. March 31, 2023.
6. We find that the progress in respect of Package Nos. 5, 6 and 7 is relatively slow. As regards Package Nos. 6 and 7, there is hardly any progress and the report indicates that work of 20% and 19.60% respectively is complete.
7. Upon going through the report and the photographs produced in respect of Package No.5 which pertains to Parshuram Ghat-Arawali section, we notice that there are some areas of concern which we indicated to Mr. Kumbhakoni and Mr. Singh. Learned Advocate General pointed out that the Public Works Department (PWD) is only tasked to supervise the construction activity of NH-66. According to him, the implementing and executing agency is 4
15.pil 19.21.doc the NHAI whom learned counsel Mr. Singh represents.
8. Page No.521 of the report reveals that due to heavy rainfall on July 21, 2021 to July 22, 2021, land slides occurred in Parshuram Ghat at 202.900 Km. This aspect was recorded by us in our order dated November 29, 2021. Parshuram Ghat work progress status as on June 5, 2022 reveals thus: -
Parshuram Ghat Work Progress Status
1. On Mumbai-Goa NH-66, in Parshuram Ghat section, For Package-4 and Package-5 around 3.00 Km length four laning work is started from 23.12.2021.
2. In this section new alignment around 2.4 km is going parallel to existing highway and alignment around 0.6 km is going through existing width of Highway.
3. In Package-4, around 1.2 Km Length work is started by Contractor.
4. Out of 1.2 Km around 700 m length is tackle by contractor and in this length sub grade earth work and GSB Work is at Final Stage and around 200 m LHS side PQC work is completed.
5. Remaining 500m length having High Cliff hill side portion and deep Valley side. In this section Bench Cutting work is in Progress in 4 Nos. Step Bench cutting. Now around 2 step of bench cutting is completed and 3rd step of bench cutting is in progress. After completion of 4th Bench cutting Final Road level is to be achieved for further completion of PQC Work.
6. Retaining wall at valley side is completed for a length of about 800 m.5
15.pil 19.21.doc
9. Though we do not claim to have expertise in the matter of construction activities, after seeing the photographs produced on record, we expressed concern that the possibility of landslide in the eventuality of there being heavy rainfall cannot be ruled out again. We expect the concerned agencies to tread cautiously and carry out the work under expert supervision on the Parshuram Ghat segment so as to ensure that apart from minimum environmental damage to the hill, there is no loss of life, limb and property.
10. So far as Package No.1 is concerned (Indapur to Vadpale), the status report indicates that 60% work has been completed. We have perused the additional affidavit filed on behalf of the State - 3rd respondent, affirmed by Executive Engineer, NHAI, Pen, Raigad. This affidavit indicates that the total length of the said package is 26.75 km, out of which 14 km work has been completed. Out of the balance 12.75 km, around 3.13 km area is covered by forest. Additionally, in respect of 3.5 km, the issue regarding land acquisition is pending. Therefore, in these stretches the intended work could not be carried out further. For the diversion through forest land, in-principle approval albeit conditional of Stage-I has been received from Forest Department on April 22, 2021. The affidavit records that there is an issue as regards the payment of Rs.15,91,40,516/- to the Forest Department and that by letter dated December 10, 2021, respondent no.3 has 6
15.pil 19.21.doc informed the Forest Department that the avenue plantation and median plantation is part of scope of contractor, it is the contractor who has to bear the cost of avenue plantation. It is stated that therefore, the aforesaid issue of the forest diversion is not yet resolved. It is further stated that the National Highway Division of the 3 rd respondent is continuously following up with Forest Department to resolve this issue and to grant permission for the execution of the work in issue at the road length that falls in the forest area.
11. During the course of the hearing we had indicated that the issue regarding payment of Rs.15,91,40,516/- needs to be resolved at the earliest so that the work can progress and be completed before the deadline. We find that except for the correspondence exchanged, there hardly is any effort made to find out a resolution. Nothing is placed on record as to whether the contractor has been informed about his liability to pay this amount.
12. We feel that there should be no difficulty in resolving this issue as it is a matter between two departments of the State Government and that too, in respect of a project of such great public importance. Respondent no. 3 may consider deputing responsible officers to sort out the issue with the Forest Department instead of just exchanging correspondence. The concerned agencies including NHAI must ensure that the issue is resolved at the earliest and place on record steps taken and the progress made in this regard by the next date.
715.pil 19.21.doc
13. An affidavit has been filed on behalf of the respondent no.12 for its deletion from the array of the respondents. According to respondent no.12, they have executed their part of the contract. This aspect will be considered on the next date.
14. An affidavit-in-reply filed on behalf of NHAI dated June 1, 2022 reveals the reasons for delay in completion of Package No.1 and the default on the part of the concessionaire. An earlier affidavit was also filed on June 29, 2022 by the NHAI in the Contempt Petition. The affidavit indicates that as per Tripartite Agreement, the concessionaire had agreed and undertaken to arrange additional funds required to complete the project from their own resources but failed to arrange the same.
15. It is pointed out that respondent no.2 - NHAI has carried out the maintenance and repair work at the risk and cost of the concessionaire (as per Article 39 of the Concession Agreement) even after the termination of the concession on November 17, 2021 to ensure that the road is motorable. Against the termination notice dated November 17, 2021, the concessionaire has filed proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 before the Delhi High Court. The Delhi High Court vide order dated November 23, 2021, granted interim protection i.e. "no coercive steps shall be taken pursuant to respondent's letter dated 17.11.2021" till next date. Vide an order dated February 8, 2022, in Appeal 8
15.pil 19.21.doc filed by the respondent No.2 - NHAI before the Division Bench of the Delhi High Court, the order passed by learned Single Judge is stayed on February 28, 2022. Thereafter, on March 21, 2022, the Division Bench observed thus: -
"Since the arbitral tribunal has been constituted and given the fact that the learned single judge has directed the conversion of Section 9 petition into a Section 17 action under the Act, we have put to the learned counsel for the parties that, as a protem measure, till such time the arbitral tribunal takes a view on the section 17 petition, the process involving new tenders could proceed, which includes the invitation of bids, subject to the caveat that no work order shall be awarded to the successful bidder till such time the arbitral tribunal renders a decision in the section 17 petition."
The next hearing before the Tribunal was scheduled on May 31, 2022. We direct the NHAI to place the further progress in respect of the proceedings before the Arbitral Tribunal on record.
16. Paragraph 4 of the affidavit dated June 1, 2022 records that in terms of the order passed by the Delhi High Court, bids were called for completion of the balance work and likely date of opening of bids is June 7, 2022. It is stated that since the concessionaire approached the Delhi High Court, the contractor could not be substituted. However, the road repair and maintenance work on the highway project is being done regularly under the supervision of independent engineers and the authority.
915.pil 19.21.doc
17. Learned Advocate General and learned counsel appearing on behalf of NHAI have assured this Court that every possible effort will be made to complete the remaining work before the deadline stipulated in the progress report dated June 5, 2022 and the affidavit dated June 1, 2022.
18. Stand over to June 30, 2022 for further consideration.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
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