Kerala High Court
Jacob Jose vs Mr. Saurabh Jain on 27 July, 2022
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
CON.CASE(C) NO. 1015 OF 2021
AGAINST THE JUDGMENT WP(C) 33239/2017 OF HIGH COURT OF KERALA DATED 4.8.2020
PETITIONER:
JACOB JOSE, AGED 58 YEARS, S/O. JOSEPH, RESIDING AT MUTHIRENTHICKAL
HOUSE, PARAPPADY, MARUKUNNU P.O, KOZHIKODE, PIN CODE-673012.
BY ADV ANITHA MATHAI MUTHIRENTHY
RESPONDENTS/RESPONDENTS 1-3:
1 Dr.B.ASHOK, AGED 43 YEARS
S/O. FATHER'S NAME NOT KNOWN TO THE PETITIONER, PRINCIPAL
SECRETARY, DEPARTMENT OF POWER, ROOM NO. 373, 1ST FLOOR, MAIN
BLOCK, SECRETARIATE, THIRUVANANTHAPURAM-695 001
2 MR. N.S. PILLAI, AGED 57 YEARS
S/O. FATHER'S NAME NOT KNOWN TO THE PETITIONER, MANAGING
DIRECTOR, KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI
BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004
3 MR.S.RADHAKRISHNAN.G, AGED 57 YEARS, S/O. FATHER'S NAME NOT
KNOWN TO THE PETITIONER, DRECTOR (GENERATION AND CIVIL HRM),
KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI BHAVANAM,
PATTOM, THIRUVANANTHAPURAM-695 004
BY GOVERNMENT PLEADER SRI.TEK CHAND, SR.G.P.
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CON.CASE(C) NO. 1015 OF 2021
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JUDGMENT
Dated this the 27th day of July 2022 S.MANIKUMAR, C.J.
This contempt petition is filed alleging wilful disobedience of the directions contained in judgment dated 4.8.2020 in W.P.(C)No.33239 of 2017. The issue involved here is with respect to the delay in commissioning the hydro-electric projects especially, Pallivasal Extension Scheme, Thottiyar Hydro Electrict Project, Chathankottunada II SHEP and Wanchiyam SHEP in Kerala even after a lapse of more than two decades and thus contempt is alleged.
2. However, today when this matter is taken up for consideration, on instructions, Mr.Tekchand, learned Senior Government Pleader submitted that the Government and KSEBL have already taken all earnest efforts/actions for the successful commissioning of the projects, namely Upper Kallar SHEP, Thottiyar HEP, Poringalkuthu SHEP and Bhoothathankettu SHEP, to comply with the direction issued by this court in judgment dated 4.8.2020 in W.P. (C)No.33239 of 2017.
3. This court's attention was drawn to the proceedings dated 25 th July, 2022 issued by the Director (Generation - Civil) addressed to the CON.CASE(C) NO. 1015 OF 2021 :: 3 ::
Principal Secretary to Government, Power Department showing the status report regarding completion of Hydro Electric Projects mentioned in the judgment of this court, which are reproduced hereunder:
Annexure
1. Pallivasal Extension Scheme (60 MW) The works of Pallivasal Extension Scheme (2X30 MW) were originally awarded to M.s. ESSAR -DEC-CPPL Consortium as per the agreement dated 31.01.2007. Since the said contractor failed to execute the works satisfactorily, KSEBL was constrained to terminate the same on 13.09.2018. The balance works were re- arranged by KSEBL as four separate works to complete the same as shown below.
(i) Expression of Interest and Request for Proposal for Engineering Design, Construction works of Intake Structure, Box culvert including Pre - Support System for Deep Excavation & Allied Works and Construction of Tunnel for 584m to Intake (Both Soil & Rock) of Pallivasal Extension Scheme - Contract with M/s. BUMI - ZILLION JV Present progress of works Intake pool 90% completed and Gate erection is pending Intake structure due to the operation of Tunneling Face I activities through Intake Box Culvert Completed Tunnel driving 555.804 m completed Tunnel lining 369.10 m Percentage of work completed 88.50 % Remaining works Intake Transition concreting Trash Rack erection, Gate Erection, Maintenance slab concreting, pile cutting at the side of River, River Training works Box culvert Lining works (17 m) Tunnel lining 197.50m Drilling& Grouting To be started for a length of 566.804 m after concrete lining.
As per the present assessment, the works are expected to be completed by 31.12.2022.
(ii) Balance Civil works of Tunnel, Surge Shaft, Pressure Shaft, Penstock, Power House and allied works - Contract with M/s Anchor Structurals - DSE - SSIPL JV Present Progress of works Tunnel lining works 882 m completed Drilling & Grouting 1670 m completed CON.CASE(C) NO. 1015 OF 2021 :: 4 ::
Surge Shaft Lining works - 16 m
HPS Completed
IPS Completed
Valve House Cable trench and drain completed.
Penstock 1986 m completed out of 2036 m.
Fire water Tank Completed.
Power House Lube oil tank completed. Yard leveling and concreting
completed. Flooring remaining.
Percentage of work completed 70 %
Remaining works
Tunnel lining works 343.20 m
Drilling & Grouting 1187.30 m to be completed.
Surge Shaft Lining works - 20 m remaining.
Valve House Side walls can be done after crane erection.
Penstock Buried penstock for a length of 9.0 m remaining.
Power House Flooring & hand rail work remaining.
ADIT Floor concreting, plugging and ADIT Gate erection
(ADIT I&II).
As per the present assessment, the works are expected to be completed by 31.12.2022.
(iii) Balance works of Tailrace Weir of PES and supply and laying of Outlet pipe from tailrace weir of Pallivasal Extension Scheme to the inlet of Sengulam tunnel - Contract with M/s. SSIPL Work completed.
(iv) Erection of supplied Electro Hydro Mechanical Equipment and Supply & Erection of BOP equipment - Contract with M/s. TVPPL - KSK - FITWELL - BOOM - REHPL consortium.
The works awarded on 31.01.2022. Official date of completion of the work is 30.01.2023. The expected date of completion of Pallivasal Extension Scheme is January 2023.
2. Thottiyar HEP (40 MW, 99Mu) The Board has foreclosed the original contract with M/s. CPPL- Chongqing JV without any risk and cost liability of the contractor as per G.O dated 04.03.2016. Balance civil works were tendered on 20.05.2017 and work awarded to M/s. PRIL- Sree Saravana Industries Pvt. Ltd on 05.01.2018.
Time of completion for the subject work is extended up to 31.05.2022 vide order dated 22.02.2022. The expected date of commissioning of 1 st machine (10MW) is July 2022. 2 nd machine (30MW) is expected to be commissioned during 12/2022. Present progress of work:
CON.CASE(C) NO. 1015 OF 2021 :: 5 ::
1 Diversion weir: : 9 blocks completed. Remaining 2 blocks - 65 % completed. All works expected to be completed by September 2022.
2 Approach Channel : Rock excavation completed. Concrete floor and side walls remaining 3 Intake structure : Concreting in progress. Intake gates, trash rack etc. fabricated and supplied at site. All intake works including erection of gate are expected to be completed by 8/2022.
4 Tunnel : Completed.
5 Penstock : Fabrication and supply completed. Erection of 215 out of 254 ferrules completed except welding and testing.
(1100 m length of penstock completed out of 1290 m). Anchor blocks - (Total - 16 Nos) - 1st stage concreting of all blocks completed.
8 Nos - 2nd stage concreting completed. Works progressing at all locations.
6 Power House : 83% completed. Control room, service bay etc. completed except finishing works. Generator floor concreting completed. Construction of barrel for 10MW unit completed and 30MW unit reached at 54.40m. Balance 1 lift remaining. Power house side wall concreting in progress.
7 Switch yard : Nearing completion. Cable trench works in progress. Remaining works 1 Diversion weir : Balance work for block 8 & 9 and allied works. 2 Approach Channel : Concrete lining 3 Intake structure : Intake structure balance work. Concreting of service slab, hoist column and beam for trash rack. Erection of intake gate, trash rack.
4 Penstock : Second stage concreting of 8 anchor blocks and balance erection works.
5 Power House : Balance concreting of barrel II, balance power house wall, balance works of tailrace channel.
6 Switch yard : Balance cable trench works (about 60m).
Physical progress Civil works : 72% Electromechanical Works : 57% Overall physical progress : 81.50% The project is expected to be completed by 12/2022
3. Poringalkuthu Small HEP (24 MW, 45.02 Mu) Civil works of Poringalkuthu Small Hydro Electric Project (24 MW) - contract with M/s GVR-GMW (JV), Chennai.
The mechanical spinning was successfully carried out on 27.03.2022 and synchronized with the state grid on 16.04.2022.
4. Bhoothathankettu SHEP (24 MW - 83.5 Mu) CON.CASE(C) NO. 1015 OF 2021 :: 6 ::
The contract for the execution of the civil works of Bhoothathankettu Small Hydro Electric Project (24MW) was awarded to M/s. SSEB-RPP Joint Venture on 07.02.2014. All the Civil works except the 3rd stage concreting and grouting completed, which can be executed only after the erection works of balance E&M equipments.
The lead partner of the contract consortium have filed cases before the Hon'ble High Court of Kerala seeking some additional claims in the case of civil works and financial support for the 3rd consignment of E&M equipments. As the contractor is facing financial stringency to import the 3 rd consignment from China, Board has taken effort to make the payment directly to their Chinese partner, by amending the terms of payment in the agreement for E&M works.
Project is expected to be completed by 31.03.2023.
Present Status:
Civil works - 99.70%
Electromechanical works - 86.61%
Overall Physical Progress - 94.06%
5. Sengulam Augmentation Scheme (85 Mu)
Contract for the execution of Sengulam Augmentation Scheme was awarded as per W.O. No CECC/SAS/3/2000 dated 09.06.2009 to Dr. Sasi Eloor- UNIDEC Joint Venture. Contract agreement in this regard was executed vide Agreement No. 06/CECC/2009-10 dated 15.07.2009. Official dates of commencement and completion of the work as per agreement were 09.07.2009 and 08.01.2013 respectively. The Contractor has commenced the work on 06.07.2009. Original time of completion of the work was extended up to 31.05.2015 and then to 31.12.2017. But the work could not be completed. The delay in works was mainly due to sub surface geological surprises, public protests, labour problems etc. While progressing the tunneling works, heavy loose falls of the soil at chainage 4005m occurred. Hence the tunneling works were interrupted and could not be proceeded further. The work was blocked and the project stood idle from 06.01.2016. In that situation, KSEBL had engaged M/s NHPC as a consultant to resolve the technical snag in driving the tunnel of the Scheme. Based on the study report of M/s NHPC furnished on 30.05.2017, a proposal for completing the stalled tunneling works of the scheme using specialized tunneling methods/supports measures etc. by way of execution of certain excess quantity/extra items with the existing contract was finalized by KSEBL and got approval from the Government. Accordingly, KSEBL had accorded revised Administrative Sanction for the work of Sengulam Augmentation Scheme (85 MU) for an amount of Rs. 81.30 Crore as per order dated 16.03.2019 and accorded sanction for extending the time of completion of the contract up to 17.03.2022.
As per the recommendation of M/s NHPC Adit I was abandoned due to collapse and cavity formation and bad nature of soil. Hence tunneling works could only be carried out through Face I and Face IV. While tunneling through Face I heavy water jetting occurred at ch. 1830.10 m and work is held up from 08.03.2020. Now various possibilities are being explored to drain out the flooded water by horizontal/directional drilling, siphon/ gravity flow /pumping, the combination of above through inlet or new opening that can be made anywhere in the tunnel. M/s. NHPC Limited was requested to conduct site investigation and to suggest methodology for dewatering the stalled water at Face I and remedial measures to solve the water jetting issue encountered at this Face and they conducted site visit from 23.03.2022 to 25.03.2022 and submitted report on 11.04.2022. Based on their report, action is initiated to get proposals from the specialized dewatering agencies. CON.CASE(C) NO. 1015 OF 2021 :: 7 ::
Tunneling works through Face IV is progressing.
Present status:
1 Weir: : Rock excavation completed. Concreting works for Block No 3 & 4 completed and up to date quantity executed is 2,958.30m³.
2 Intake : Rock excavation for foundation works completed and RCC protection wall for a length of 77 m has been constructed to prevent entry of flood water to the tunnel through intake.
3 Diversion Tunnel : The total length of diversion tunnel is 6710.439 m.
5095.44 m tunneling work has been completed so far. 4 Exit Channel : The total length of Exit channel is 376.00 meters of which 342.89m channel has been completed.
5 Access roads : The construction of access road to the work fronts such as Intake, Adit-I, Adit-II and Exit Face completed 6 Hydro mechanical : Fabrication and erection of scour pipe completed. works of weir and Intake.
Remaining works 1 Weir: : The concreting of Block No. 1 and 2 (approximately 1986m3) can be taken up only after completing the works through Face-1 of the Tunnel.
2 Intake : The concreting works can be started after completion of the Tunnel works.
3 Diversion Tunnel : Balance 1615m tunnel driving has to be carried out. 4 Exit Channel : Balance length of 33.11m channel is to be completed after the completion of protective works inside the tunnel. 5 Access roads : Nil 6 Hydro mechanical : The fabrication and erection of trash rack, Intake gate, works of weir and air vent pipe, etc. to be done. Intake.
Physical progress : 76.07 % The project is expected to be completed by March 2024.
6. Upper Kallar SHEP (2MW, 5.14Mu) The project commissioned on 30.9.2021.
7. Kakkayam SHEP (3MW) Project commissioned on 16.07.2018.
8. Wanchiyam SHEP (Allotted to Private developer) KSEBL as per order dated 18.08.2017 has accorded sanction to transfer 12 projects including the Wanchiyam SHEP to KSIDC for implementation through private participation as per Government policy and KSIDC will take further necessary action in this regard.
CON.CASE(C) NO. 1015 OF 2021 :: 8 ::
4. Giving due consideration to the above status report regarding completion of Hydro Electric Projects, we are of the view that there is no willful or intentional disobedience of the directions contained in judgment dated 4.8.2020 in W.P.(C)No.33239 of 2017. Therefore, we are of the view that there is no need to invoke the provisions of the Contempt of Courts Act, 1971.
In the light of the above discussion, contempt petition is closed.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P. CHALY JUDGE jes CON.CASE(C) NO. 1015 OF 2021 :: 9 ::
APPENDIX PETITIONER'S ANNEXURES:
Annexure A1 CERTIFIED COPY OF THE JUDGMENT IN W.P.C NO. 33239/2017 // True Copy // P.S. to Judge