Patna High Court - Orders
Satyam Shivam Sundaram (Nh-19-4L ... vs The Union Of India on 31 March, 2022
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3006 of 2022
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Satyam Shivam Sundaram (NH-19-4L Chhapra - Hajipur Section on BOT
(Annuity))
... ... Petitioner/s
Versus
The Union of India & Ors.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 8137 of 2020
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Rajiv Ranjan Singh
... ... Petitioner/s
Versus
The State of Bihar & Ors.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 3056 of 2022
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Mukesh Kumar Thakur
... ... Petitioner/s
Versus
The Union of India & Ors.
... ... Respondent/s
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Appearance :
(In Civil Writ Jurisdiction Case No. 3006 of 2022)
For the Petitioner/s : Mr. Satyam Shivam Sundaram (In Person)
For the Respondent/s : Mr. Dr. K.N. Singh (ASG)
(In Civil Writ Jurisdiction Case No. 8137 of 2020 and 3056 of 2022)
For the Petitioner/s : Mr. Birendra Kumar, Advocate
Mr. Mukesh Kumar Thakur (In Person)
For the N.H.A.I. : Dr. K.N. Singh, ASG
Mr. Devansh, JC to ASG
Dr. Vijay Chandra Maurya, Advocate
Mr. Gaurav Govinda, Advocate
Mr. Gaurav Kumar, Advocate
For Union of India Mr. Kumar Priya Ranjan, CGC
For the State Mr. Anjani Kumar, AAG-4
Mr. Alok Kumar Rahi, AC to AAG-4
Mr. S.D. Yadav, AAG-9
Mr. Dinesh Mahraj, Advocate
For Power Distribution Company: Mr. Vinay Kirti Singh, Sr. Advocate
Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022
2/14
For the Concessionaire Mr. Siddhartha Prasad, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
3 31-03-2022We are dealing with (NH-19-4L Chhapra - Hajipur Section on BOT (Annuity).
Chhapra Hajipur Expressways Limited Madhucon House, Plot No.1129/A Road No.36, Jubilee Hills Hitech City Road, Hyderabad- 500033, A.P. and Commissioner of Railways Safety Eastern Circle, Kolkata, be impleaded as party- respondents Nos. 6 and 7 in C.W.J.C. Nos.3006 of 2022 and respondent Nos. 7 and 8 in C.W.J.C. No.3056 of 2022.
Registry to make necessary correction in the cause title both, on the digital as well as physical, files.
We have interacted with Mrs. Udita Singh, District Magistrate, Vaishali, Mr. M. Sabri, Project Manager and Mr. N. Seethaih, M.D.-cum-Chairman of the concessionaire, Mr. Mukul Kumar Gupta, M.D., B.S.P.T.C.L., Mr. Manoj Kumar, Project Director, N.H.A.I. and Mr. Deepak Tiwary, Manager, Patna Highway Projects Limited as also learned counsel for the parties.
Learned A.S.G., inviting our attention to the orders Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 3/14 passed, with respect to the concessionaires undertaking similar projects in the State of Jharkhand, vehemently submits that directions be issued for initiation of proceedings, in accordance with contractual terms entered into between N.H.A.I. and the concessionaire, for rescinding the contract.
We notice that in W.P.C.(P.I.L.) No. No.3503 of 2014, titled as The Court on Its Own Motion Vs. The Union of India, through its Secretary, Ministry of Road Transport and Highways & Ors., and other connected matters, the High Court of Jharkhand at Ranchi has passed an order issuing certain directions with respect to the agreement entered into between N.H.A.I. and the very same concessionaire.
We notice that the project in question, i.e. the works for construction of Chapra-Hajipur Section of N.H.-19 awarded to the concessionaire is inordinately delayed.
We notice that in the instant petition, this Court has been passing several orders asking all the stake-holders to fix a time-line within which the project would be completed. Several issues were highlighted by the parties, including inability of the concessionaire in completing the project within the stipulated time-line. The issue of acquisition of land and handing over possession thereof, stood addressed both by the N.H.A.I. as also Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 4/14 the State Government way back in January, 2021.
Earlier on 10th August, 2021, when we had interacted with the Chairman and Project Director of the Concessionaire, we had cautioned them of completing the project at the earliest. Only on the undertaking furnished by the Concessionaire of completing certain stretch of road for establishing his bona fide, this Court had refrained from issuing any direction adverse to that of Concessionaire. With profit, we quote the said order in toto:-
"6. 10.08.2021 Shri N. Seethaih, Chairman, Shri Mobashir Sabri, Project Manager of M/s Madhucon Infra Limited; and Shri Amit Kumar, Deputy Development Commissioner, Saran are present through Virtual Mode.
In contradicting the contents of the affidavit filed by the State and the Contractor, Shri S.D. Sanjay, learned Senior Counsel points out that justice demands this project be monitored by the Court, more so, on account of the inordinate delay in its completion.
As already noticed in our previous order, the project, awarded in 2011, with work to be executed within 2½ years, remains incomplete.
In the affidavit filed by the State, the Contractor is said to have executed 80% of the work, which fact is seriously disputed not only by the officers/officials of the State but also the NHAI.
In fact, for verification, we thought fit of constituting a Commission, but at this point, refrain from doing so, for as is now admitted by the parties that much is desired to be done by all the stakeholders, save and except the NHAI.
Hence, for the present, without going into the reasons for the delay, we deem it prudent to Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 5/14 direct the Contractor to first focus on four places to ensure that neither any inconvenience is caused to the general public, nor is there any obstruction in the smooth flow of vehicular traffic, more so, goods carriers.
We notice that the highway in question is undoubtedly the main arterial road, connecting the north-western part of the State with its capital. Also, this highway is to connect with other National Highways leading to the northeastern parts of the country.
We need not emphasize the significance and importance of this Highway and the need for its early completion. As such, we agree with the submissions made across the Bar that the Court should continue to monitor this project, ensuring early completion of work.
We express our doubt of the contractor's capacity, competence and ability to complete the work. But, without saying anything further, only to test his bona fides, we put it to the Chairman and the Company's Project Manager to complete at least four portions of the Highway which put together is not more than 17 K.Ms. (approx.) of length.
For convenience, such places are as under:-
Sl. No. Road to be constructed
1 1.85 KM of encroached road/land in the village of
Hewantpur, Manpur, Manoharpur, Sumerpatti and Sitapur
2 Bakarpur to Hajipur (starts at J.P. Setu end on the Northside of Ganges) 3 Chappra bypass (out of 15 km bypass, work on 3 km left) 4 ROB at Hajipur for which CRS clearance accorded At this stage, Shri Siddhartha Prasad, under instructions from Shri N. Seethaih, Chairman and Shri Mobashir Sabri, Project Manager of M/s Madhucon Infra Limited, states that for establishing their bona fides, the Company is ready and willing to deploy adequate men and machinery for completion of at least the Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 6/14 first identified segment i.e. the stretch from where the encroachment of 1.85 K.M. is required to be removed in village Hewantpur.
Further, the contractor undertakes to construct and make fully motorable, at least 1 K.M. stretch of road on both the ends of this 1.85 K.M. stretch of road to be constructed. This they shall do this within the next 2-3 days by deploying at least 300 men, with adequate machinery, including JCB Machines, Bulldozers, Earth-removers, road rollers, Hywa, etc. He undertakes that the entire road at least up to 1 K.M. on both sides of the 1.85 K.M. stretch of road, would be made motorable within next 45 days. Further from the date of removal of encroachment and handing over possession of land of 1.85 K.M., the road would be constructed and made fully motorable within 3-4 months.
Statement of the Chairman, namely Mr. N. Seethaih and the Project Manager, namely Shri Mobashir Sabri, of Madhucon Infra Limited, is accepted and taken on record. They are made fully aware of the consequences of breach thereof, including initiation of proceedings for violating the order, both under the provisions of the Constitution of India and the Contempt of Courts Act.
In so far as sites identified at Serial Nos. 2, 3 and 4 indicated in the chart supra, is concerned, the Contractor is required to not only mobilize men and machinery but also seek assistance from the District Administration ensuring proper and smooth movement of traffic, also help speed up construction work of the road.
Shri Anjani Kumar, learned Additional Advocate General No. 4 states that not only the District Magistrate, Saran but also the Senior Superintendent of Police, and senior-level functionaries of the State would render all help to the Contractor, ensuring smooth flow of traffic; removal of encroachments; make available construction material, as and when required, which, of course, has to be in accordance with law.
Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 7/14 At this stage, Shri Siddhartha Prasad, learned counsel for the Contractor, points out that the Contractor needs further assistance by way of funds.
Considering the nature of the agreement, we are not inclined to pass any directions, save and except notice that the contractor was already accommodated earlier with the grant of one time assistance of disbursement of funds amounting to Rs. 387 Crore (approx.) by the Union of India. However, accounting for the importance and significance of the project, we are inclined to direct the NHAI for depositing some money with the Court, to be disbursed to the Contractor, only upon being satisfied of bona fide, intent of expeditiously completing the work and the need for financial assistance.
Shri Siddhartha Prasad, learned counsel for the Contractor, invites our attention to the calculation indicating the Contractor's requirement of funds up to 100 Crore (approx.).
Shri S.D. Sanjay, learned Senior Counsel states that for this, the matter shall be taken up at the highest level for favourable consideration.
We clarify that the amount shall be deposited with the Court and disbursed only after recording satisfaction of the Contractor's competence and ability to complete the work expeditiously.
Also Shri S.D. Sanjay, learned Senior Counsel, under instruction from Col. Chandan Vatsa, Chief General Manager (Tech) cum Regional Officer, National Highway Authority of India, Bihar, Patna, further states that as and when the Contractor submits any bills for the execution of the work, the same would be processed and claims finalized with amounts disbursed expeditiously. Needless to add, this has to be done only after proper verification and satisfaction by the disbursement authority.
Shri Amit Kumar, Deputy Development Commissioner, who is connected through Virtual Mode, under instructions from Shri Deor Nilesh Ramchandra, District Magistrate, Saran, states Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 8/14 that now all effective steps shall be taken for removal of the encroachment over this 1.85 K.M. stretch of land.
We are hopeful that steps shall be taken within the next 15 days, and possibly within the said period, entire encroachments removed and possession handed over to NHAI, in turn to be handed over to the Contractor.
Let the Chairman; the Managing Director, and the Project Manager of the Company file their personal affidavits, duly approved by the Company's Board of Directors, in terms of the undertaking furnished before this Court, recorded supra. This, they shall do within the next two days.
Also, the District Magistrate Saran shall file his personal affidavit within one week, indicating the steps taken for the removal of encroachments. Also, he shall ascertain and report the factum of deployment of adequate men and machinery as undertaken by the Contractor.
List this matter on 17th of August, 2021." Pursuant thereto, on 21st January, 2022, we had passed the following order:-
"8. 21.01.2022 Present matter relates to construction of NH - 19 - 4 L - Chhapra - Hajipur on BOT (Annuity), length of which is 66.74 K.M. and date of Award was 27.01.2011 and scheduled date of completion of project was 24.7.2013, which was extended to 31.03.2022.
On 10.8.2021, when the present matter was taken up, the concessionaire undertook to complete four portions of the Highway, such places are as under:-
Sl. No. Road to be constructed
1. 1.85 KM of encroached road/land in the village of Hewantpur, Manpur, Manoharpur, Sumerpatti and Sitapur Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 9/14
2. Bakarpur to Hajipur (starts at J.P. Setu end on the Northside of Ganges)
3. Chappra bypass (out of 15 km bypass, work on 3 km left)
4. ROB at Hajipur for which CRS clearance accorded However, at that point of time, it was submitted on behalf of concessionaire that said portions could not be completed as same are submerged in the water as well as there is encroachment made on such portions. It was also brought to the notice of this Court that concessionaire needs further assistance by way of funds of rupees one hundred crore and it was directed that issue of fund be resolved among the parties by negotiation.
When this matter was taken up today, no information was provided to this Court with respect to commitment made by the concessionaire with respect to said four portions of NH as well as issue of funding of rupees one hundred crore to the concessionaire.
The project of immense importance is already delayed by over eight years and is being unnecessarily delayed, as this Court finds that no progress has been made in this project since the matter was last taken up on 17.08.2021.
In such view of the matter, we direct the newly appointed Development Commissioner, Bihar to immediately convene a meeting of all the stake-holders, ensuring that all steps for early completion of the project are taken. The said officer shall also file his affidavit of the steps taken in this regard.
List on 07.02.2022."
Prima facie, we are of the considered view that the concessionaire may not have intent of completing project which Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 10/14 stands delayed by more than eight-ten years.
During the course of today's interaction, several issues stand highlighted both by the District Magistrate, Vaishali and N.H.A.I., the common factor being the lack of wherewithal, infrastructure, competence and, perhaps the financial ability and capacity of the concessionaire in completing the works.
However, Pursuant to such discussions today, the concessionaire has filed an affidavit dated 31.03.2022 inter alia stating as follows:
"Para-3- That in view of the developments that have taken place in the present case, the concessionaire undertakes to execute the following work:-
(a) The concessionaire undertakes to repair and complete the side lanes on both sides of Anjanpeer Flyover and make it roadworthy within a period of one month from today.
(b) The concessionaire undertakes to complete the road over bridge (ROB) at Hajipur, for which girder launching is already going on, and to make it operational within a period of two months.
(c) In view of the approval accorded by NHAI, the concessionaire undertakes to shift the High Voltage Transmission Tower within a period of two months from the date of approval of necessary drawings from BSPTCL reserving liberty to humbly pray before this Hon'ble Court to extend the time period if and when required.
(d) The concessionaire undertakes to Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 11/14 immediately remove the unwanted speed-breakers near Anjanpeer flyover and to construct/shift the same at appropriate places as identified by the district administration.
(e) The concessionaire further undertakes to complete the bridge over river Gandak within a period of ten months because there are balance 13 spans to be completed and each span require 20 days to launch the segments and 5 days for stressing which means completion of one span requires 25 days. The concessionaire further undertakes that the work will start within a week and it will continue uninterruptedly till the completion. Further the concessionaire would like to inform that monsoon does not much affect the execution of bridge work."
Shri Siddhartha Prasad, learned counsel for the concessionaire, as instructed by the deponent, i.e. Mobashir Sabri, Project In-charge of the concessionaire company as also the Chairman-cum-Managing Director, namely N. Seethaih of the concessionaire company, namely Chhapra Hajipur Expressways Limited Madhucon House Ltd., states that the concessionaire undertakes to execute the work referred to (supra) within the time-line stipulated therein and without availing any financial assistance from any quarters, be it the consortium of banks or the N.H.A.I. However, he adds that the issue of release of Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 12/14 amounts pursuant to N.O.C. issued by the consortium of banks is pending consideration with N.H.A.I. is required to be expedited.
Having given our thoughtful consideration to the contents of the affidavit, we accept the undertaking furnished by the concessionaire clarifying that any breach thereof would tantamount to having committed contempt of court for which we would not hesitate to initiate action in accordance with law. Insofar as the work and the time-line referred to in para-3(e) (supra) is concerned, learned A.S.G., assisted by Shri Dr. Vijay Chandra Maurya, states that it would be only prudent that the concessionaire re-commences the said work from both the ends.
We are in agreement with such submission. In fact, Shri Siddhartha Prasad, under instructions, both from the Chairman-cum-Managing Director and Project Manager of the concessionaire company, undertakes to re-commence the work from both the ends and endeavour to complete the same within a period of 6/7 months instead of 10 months. All this shall be done by mobilizing their resources.
Needless to state that all the work shall be executed by the concessionaire without availing any monetary assistance from N.H.A.I. or the consortium of banks as referred in Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 13/14 paragraph-5 of the affidavit reproduced supra.
We reiterate that with the acceptance of undertaking furnished by the concessionaire and taken on record, any breach thereof, would tantamount to having committed contempt of court.
We are of the considered view that the project stands already delayed by more than one decade and it is about time for the N.H.A.I. to take a call as to whether the remaining work is to be executed, if at all, through the concessionaire or some other agency. In fact, we direct N.H.A.I. to immediately take a call and commence the process in accordance with the contractual terms entered into by the parties. This they shall do independent of the concessionaire undertaking furnished to the Court for completing part of the work within a time bound period. We are informed that the process of recession itself takes eight months. It is in this backdrop that we are issuing such a direction, for if ultimately NHAI does not decide to rescind the contract then at least the steps taken within the contractual time line can be completed and public interest is not compromised or affected any further.
Insofar as the issue of process for release of the funds by the N.H.A.I. in terms of the N.O.C. issued by the Patna High Court CWJC No.3006 of 2022(3) dt.31-03-2022 14/14 consortium of the banks is concerned, at this stage, we refrain from passing any order, for we want to be satisfied of the bona fides; capacity; capability and competence of the concessionaire to execute the project.
We are also of the considered view that it would be only appropriate that the District Magistrate, Vaishali monitors the execution of the work to be undertaken in terms with the undertaking furnished before this Court. Ordered accordingly.
We direct her to submit a report on fortnightly basis. First such report be filed before the next date.
List on 18th of April, 2022 when all present today shall be present.
(Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/-
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