Calcutta High Court (Appellete Side)
Hindustan Construction Company ... vs Kolkata Metropolitan Development ... on 2 April, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
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2.04.2014 W.P. 7104 (W) of 2014
Hindustan Construction Company Limited & anr.
Vs.
Kolkata Metropolitan Development Authority & ors.
Mr. S. K. Kapoor, Sr. Adocate
Mr. Ranjan Bachawat
Mr. S. Ginodia
Mr. M. K. Tewari
Mr. Ravi Kapoor
Mr. Debnath Ghosh
Mr. S. Roy Chowdhury
Mr. Arnav Kumar
.........for the petitioners.
Mr. Asok Kumar Banerjee, Govt. Pleader
Mr. Suman Sengupta
......for the respondents.
1. The project for construction of an elevated road corridor from Park Circus to Eastern Metropolitan Bypass near Parama Island had been entrusted by the Kolkata Metropolitan Development Authority (hereafter the KMDA) to the first petitioner upon it being found to be the most suitable bidder, in furtherance of a tender notice dated August 25, 2009. The several deadlines fixed for completion of the project have passed by, with the project only near about half-complete. The petitioners allege inability of the KMDA to provide encumbrance free sites/work 2 fronts as the main reason for jumping the deadlines, while the KMDA has cried hoarse that despite full co- operation from its side the petitioners' lacked the intention to complete the project within the deadlines that were fixed from time to time, with an eye to earn more profits. Due to the disputes and differences that cropped up between the petitioners and the KMDA, the work relating to the project has been stalled for the last few months. I need not examine the issue of fixing responsibility at this stage, since it is hardly relevant. Suffice it to note, the elevated road corridor could not be made functional resulting in the pain and agony of the public mounting by each passing day. The KMDA deleted a portion of the works from the contract by a letter dated December 4, 2013 and issued a further tender notice dated January 21, 2014 for completion of the balance portion of the project mentioning Rs. 260 crore as the estimated cost of the work. The bid of the first petitioner at Rs. 293 crore was the lower between the two bids that were received. However, by an order dated February 5, 2014, the tender notice was cancelled. A fresh e- tender notice was issued on February 18, 2014 3 mentioning Rs. 257 crore as the estimated cost of the work. Cancellation of the tender notice dated January 21, 2014 and issuance of fresh e-tender notice dated February 18, 2014 are under challenge in this writ petition.
2. I have heard the parties at some length over the past few days. The project is an ambitious one and having regard to the fact that the elevated road corridor would pass through one of the busiest roadway of Kolkata, it is by no means an easy task. However, it is axiomatic that once the elevated road corridor is thrown open to the public, it would ease the heavy flow of vehicular traffic between Central Kolkata and Eastern Kolkata. It would also be a matter of great pride for the residents of the State to have such an elevated road corridor, the total length whereof is likely to measure in excess of 8 kms. Considering that examination of the legal niceties that are involved would only delay the project, which would not be in public interest, and further having regard to the fact that the first petitioner had completed erection of pillars on the stretch starting from the eastern end of No.4 pool to Spring Club 4 towards the northern side of the Eastern Metropolitan Bypass, with a partially constructed downward ramp towards its southern side, I had requested the parties to settle the disputes and differences across the table in my presence in chamber so that the project work could resume and the construction is completed at an early date, preferably by the next year end.
3. The parties were not ad idem on all items of claims and counter-claims. The first petitioner, in course of hearing, proposed to carry out the balance work at the estimated cost mentioned in the e-tender notice dated February 18, 2014 and also to bear the expenses for removal of utilities subject to the KMDA providing the petitioners encumbrance free sites/work fronts, and shifting/removing all types of utilities therefrom in a time-bound manner. The proposal was not acceptable to the KMDA and it prayed for orders to proceed with the opening of the commercial bids received pursuant to the e-tender notice dated February 18, 2014.
4. By my order dated March 20, 2014, I had stayed the operation of the impugned tender notice, until further orders and placed the writ petition for further 5 consideration. The parties have since been heard on a number of days in my chamber in the presence of technical personnel from both sides. At the hearing, I insisted that the parties must explore the possibility of completing the project and invited suggestions from them. Suggestions that were received, have been duly considered.
5. Bearing in mind the fact that the response to the tender notice dated January 21, 2014 was not at all encouraging and the KMDA has further reduced the estimated cost from Rs. 260 crore to Rs. 257 crore and the petitioners are willing to complete the project at such cost and are also agreeable to bear the cost of utilities subject to the condition noted above, I am of the view that the proposal of the first petitioner is fair and reasonable. Further, considering the fact that the petitioners must be aware of the working conditions and ready with the drawings and designs pertaining to the project and would be in a comparably advantageous position to mobilize men and material, in my opinion entrustment of a new contractor would only prolong the process, which is absolutely against public interest. Keeping the project work in an 6 unfinished state would add on to the miseries rather than benefiting any one. The extraordinary situation demands that the parties should bury their disputes and differences for the present and right intentions should be backed up by right actions. Although this writ petition has not been filed in public interest, it is the duty of the Court to interdict and set the project in motion once again by making appropriate directions to ensure that its completion is not unduly delayed.
6. It is, accordingly, directed as follows :
(1) Subject to further orders that might be passed in course of this proceeding, if necessary, the terms and conditions for the balance works shall be governed by the Letter of Acceptance (No. 133/SE/TTC-I/KMDA/W-466) dated December 15, 2009. Modified/revised Letter of Acceptance shall, accordingly, be issued by the KMDA as early as possible.
(2) On account of mobilization advance, 5% of Rs.257 crore shall be paid to the first petitioner by the KMDA by April 15, 2014.7
(3) The balance works shall be executed by the first petitioner at a lump sum amount of Rs.257 crore, and it shall be completed within May 31, 2016 as per the following handing over of site and completion of works schedule:
Handing Completion over of Date of works site:
Handing over of
Zone-I (A1 Completion
A site on
to P5) on Nov, 2014
02.05.2014
Zone-II(P-
B
104 to A2
Segment-1 Handing over
(P104 to the site on
P110) 01.06.2014
Segment-2 Handing over
(P-111 to the site on
P-117) 01.07.2014
Balance
work from
Completion on
P-5 to P-
Feb, 2015
87 and
underpass
Segment-3
Handing over Completion
(P -118 to
the site on on JULY,
End of
01.08.2014 2015
Ramp)
East
bound
Handing over
Ramp Completion
C the site on
(Stretch on Nov, 2015
01.09.2014
EB-1 to
EB-19)
West
Handing over
bound Completion
D the site on
Ramp on May, 2016
01.10.2014
(Stretch
8
WB-1 to
WB-34)
(4) Since the works have to be executed and
completed as per the above works schedule and within the stipulated time, and number of organisations/Government departments would have to extend sincere co-operation and cohesive action is called for to ensure expeditious removal of utilities to provide encumbrance free sites and unhindered work fronts to the first petitioner, a High Level Coordination Committee is hereby constituted with the Hon'ble Minister-in-Charge of Municipal Affairs and Urban Development Department, Government of West Bengal & the Chairman, KMDA as the Chairperson thereof and consisting of the following members:
(i) Principal Secretary, Urban Development Department, Government of West Bengal;
(ii) Chief Executive Officer, KMDA - Member Convenor;
(iii)Commissioner, Kolkata Police;
(iv) Commissioner, Kolkata Municipal Corporation;
(v) Managing Director/Chairman, CESC Ltd.;
(vi) Vice Chairman, Hooghly River Bridge Commissioners;
(vii) Deputy Commissioner of Police, Traffic Department, Kolkata Police;9
(viii) Managing Director/Chairman, Bharat Sanchar Nigam Limited;
(ix) Managing Director/Chairman, Greater Calcutta Gas Supply Corporation Ltd;
(x) An authorized representative of the first petitioner;
(xi) Divisional Forest Officer, Forest Department;
(xii) Director, Fire and Emergency Services; and
(xiii) Managing Director/Chairman, Optical Fibre Lines.
If necessary, engineers of the first petitioner and the KMDA and official(s) of any other department of the Government of West Bengal/statutory authorities, whose co- operation is likely to be required and whose presence is considered necessary may be invited to form part of the High Level Coordination Committee by its Chairperson. It would be desirable if the High Level Coordination Committee meets at least once a month to take stock of the progress that is being made as well as to suggest ways and means to achieve the goal that is set by this order.
Since vehicular traffic in and around the sites and work fronts may have to be diverted for facilitating the work related to the project, the 10 Deputy Commissioner of Police, Traffic Department shall be informed well in advance so that alternative arrangements for traffic movement may be made for ensuring progress causing least hardship to the people belonging to different age groups.
(5) Costs towards shifting, relocating, restoring etc. of all utility lines including all cost of materials, labour etc. and disposal of unserviceable materials from the site to the departmental land or stack yards within 10 km lead as per instruction of E.I.C. will be borne by the first petitioner. Departmental charges/ official fees levied by individual utility departments/authorities (i.e. supervision fees/service charges etc.), if any, shall be paid to the utility departments by the first petitioner in consultation with E.I.C. and will be reimbursed by the KMDA.
(6) The responsibility for obtaining all necessary permissions for shifting and relocation of utilities and providing alternative sites/spaces for such shifting shall be of the KMDA.
11(7) Fees towards Project Management Consultant, if required shall be borne by the KMDA.
(8) Electrical works including cost of supplying, fitting and fixing of fixtures, luminaries etc. of the entire project shall be done completely by the first petitioner. However, details of works including drawings showing fittings, fixtures etc. shall be submitted by the first petitioner to the KMDA beforehand for approval.
(9) Costs of vetting, proof checking etc. of designs and drawings on behalf of the KMDA shall continue to be borne by the KMDA.
(10) Payment Schedule shall be submitted by the first petitioner for approval of the KMDA.
(11) Under no circumstances escalation of cost, for whatever item or under whatever head, shall be allowed.
(12) Quarterly reports shall be submitted before the Court by the first petitioner to enable it keep track of the progress that is being made.
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7. The order dated March 20, 2014 staying operation of the tender notice dated February 18, 2014 shall continue until further orders.
8. I hope and trust that the above directions would ensure progress in the proper direction and shall be complied with by all concerned in the right earnest to make a dream come true for the people of the State in general and Kolkata in particular.
9. The parties shall be at liberty to mention the writ petition for obtaining further orders, if at all the occasion therefor arises.
10. On the joint prayer of the parties and also with a view to monitor the progress of the project work, the writ petition shall be treated as 'heard-in-part'.
11. I record my sincere appreciation for the assistance received from Mr. Kapoor and Mr. Banerjee, learned senior advocates representing the parties.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
13(DIPANKAR DATTA, J.) 14