Orissa High Court
WP(C)/5568/2021 on 24 February, 2021
1 No.5568 of 2021 W.P.(C)
04. 24.02.2021 1. Heard Mr. P. Garg, learned counsel for the Petitioner and Mr. S. Palit, learned Additional Government Advocate.
2. The central theme of the present writ petition by the All Odisha Contractors' Association, is that some of the clauses of the Request for Proposal (RFP) floated by the Government of Odisha in connection with the work of construction of carriageway from 2-Lane to 4-Lane of Dharmagarh-Ampani Road from 140/000 Km to 174/504 Km including one major bridge in the district of Kalahandi (Package-4.4) on Engineering, Procurement & Construction (EPC) Mode Contract are inconsistent with and contrary to the guidelines issued on 2nd November, 2020 by the Ministry of Road Transport & Highways, (MORTH) Government of India. In particular a comparison is drawn between the criteria prescribed under the MORTH guidelines with the stipulations in the RFP, to show that the latter far exceed the MORTH criteria in many ways and that, they are, therefore, violative of the fundamental rights of the Petitioner.
3. When the matter came up for hearing first on 18th February, 2021, the Court had posed a specific query to Mr. P. Garg, learned counsel for the Petitioner, to explain the legal basis for his contention that the MORTH guidelines were binding on the 2 Government of Odisha especially since the project involved the construction of a State Highway and not a National Highway.
4. Mr. Garg today has presented a note in which the contention put forth is that the RFP is "repugnant to the Notifications of the MORTH issued under Entry No.7 of the Concurrent List to VII Schedule of the Constitution of India"
and, therefore, is unsustainable in Law.
5. Mr. Garg seeks to build on the above argument by first contending that MORTH has two wings, one the Road Wing and another the Transport Wing. He then delineates the main responsibility of the Road Wing as including the extension of technical and financial support by the Central Government to State Governments for development of state roads and roads of economic importance in the State.
6. Building on this premise, Mr. Garg seeks to contend that the directions issued by MORTH in relation to National Highways, under the National Highways Act, 1956 or the National Highways Authority of India Act, 1988, have a 'statutory flavour' and are, therefore, binding on the State Government.
37. He seeks to rely on the decisions of the Supreme Court including State of Karnataka v. Union of India (1977)4 SCC 608, Project Director v. P.V. Krishnamoorthy [(2020) SCC Online SC 1005], West and UP Sugar Mills Association v. State of UP 2020 SCC Online SC 380 regarding repugnancy of statutes on topics in the Concurrent List under the VII Schedule to the Constitution of India.
8. In the considered view of the Court, the premise that the Central Government is extending technical and financial assistance to the project which forms the subject matter of the present petition is misplaced. There is no positive averment anywhere in the petition that the State Government is receiving technical and financial support from the Central Government for the project in question. The fact remains that the project involves the construction of a State Highway by expanding a 2-Lane road to a 4-Lane road.
9. None of the decisions cited concern the binding nature of the MORTH guidelines on a State Government, in relation to the construction of a state highway. On the contrary, the note refers to Section 11 of the Odisha State Roads Tolls Act, 2010 (the Act) which seems to assert that any provision contained in any State Act which is repugnant to any provision contained in the Act would have to give way to the Act.
410. In other words, there is nothing either in the petition or in the note submitted by Mr. Garg to the Court, to explain the legal basis for the assertion that in relation to a state highway project, the MORTH guidelines are binding to the State Government and that any clause in RFP issued in relation to the construction of such state highway will have to be consistent with the MORTH guideline, failing which it would be considered illegal.
11. Finding no legal basis for any of the submissions made before it, the Court is unable to grant any of the reliefs prayed for in this writ petition.
12. The writ petition is accordingly dismissed.
(Dr. S. Muralidhar) Chief Justice (B. P. Routray) Judge M.K.Panda/ K. Majhi