Gauhati High Court
Navajyoti Sarma vs Union Of India And 9 Ors on 6 August, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/9
GAHC010102072024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2700/2024
NAVAJYOTI SARMA
SON OF LATE TRILOCHAN SARMA,
RESIDENT OF KAMAKHYA MANDIR,
GUWAHATI- 781010,
DISTRICT- KAMRUP(METROPOLITAN),
ASSAM.
VERSUS
UNION OF INDIA AND 9 ORS
REPRESENTED BY THE SECRETARY,
MINISTRY OF CULTURE,
GOVERNMENT OF INDIA,
502-C WING, SHASTRI BHAWAN,
NEW DELHI- 110001.
2:MINISTRY OF TOURISM
GOVERNMENT OF INDIA
THROUGH ITS SECRETARY
CHAIRMAN OF PRASHAD SCHEME
R.NO. 109
TRANSPORT BHAWAN
1- PARLIAMENT STREET
NEW DELHI
110001.
3:ARCHEOLOGICAL SURVEY OF INDIA
THROUGH ITS DIRECTOR GENERAL
Page No.# 2/9
DHAROHAR BHAWAN
24 TILAK MARG
NEW DELHI 110001.
4:THE CHAIRMAN
PM DEVINE SCHEME
SECRETARY
MINISTRY OF DEVELOPMENT OF NORTH EASTERN REGION
VIGYAN BHAWAN ANNEXE
MAULANA AZAD ROAD
NEW DELHI 110001.
5:THE STATE OF ASSAM
THROUGH ITS CHIEF SECRETARY
GOVERNMENT OF ASSAM
BLOCK-C
3RD FLOOR
ASSAM SACHIVALAYA
DISPUR
GUWAHATI- 781006.
6:PUBLIC WORKS (BUILDING AND NATIONAL HIGHWAY) DEPARTMENT
THROUGH ITS SPECIAL COMMISSIONER AND SPECIAL SECRETARY TO
THE GOVERNMENT OF ASSAM
BLOCK B
GROUND FLOOR
ASSAM SECRETARIAT
DISPUR
GUWAHATI- 781006.
7:DIRECTOR OF ARCHAEOLOGY
ASSAM
GOVERNMENT OF ASSAM
GOPINATH BORDOLOI ROAD
AMBARI
GUWAHATI
Page No.# 3/9
ASSAM
781001.
8:DEPARTMENT OF CULTURAL AFFAIRS
THROUGH ITS DIRECTOR
DIRECTORATE OF ARCHAEOLOGY
GOVERNMENT OF ASSAM
GOPINATH BORDOLOI ROAD
AMBARI
GUWAHATI
ASSAM
781001.
9:DEPARTMENT OF TOURISM
THROUGH PRINCIPAL SECRETARY
GOVERNMENT OF ASSAM
ASSAM SECRETARIAT (CIVIL)
BLOCK-F
3RD FLOOR
DISPUR
GUWAHATI-781006
ASSAM.
10:LARSEN AND TOUBRO LIMITED
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR
AND HAVING ITS OFFICE AT MOUNT POONAMALEE ROAD
MANAPAKKAM
CHENNAI- 600089
TAMIL NADU
For the petitioner (s) : Mr. U. Hazarika, Sr. Advocate
Mr. K. P. Pathak, Advocate
For the respondent (s) : Mr. D. Saikia, AG, Assam
Mr. D. Nath, Sr. Govt. Advocate
Mr. R. Borpujari, Advocate
Page No.# 4/9
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
06.08.2024 This Court vide an order dated 05.08.2024, fixed the matter today taking into account the submission made that the learned Advocate General, Assam would be addressing this Court. Accordingly, the matter was taken up for hearing as to whether the PWD (Building), Department of the Government of Assam has the resources to carry out the Geotechnical Investigation including the Hydrogeological and Geophysical Investigation as stated in the Memorandum of Understanding (MoU) dated 25.06.2024.
2. An affidavit dated 06.08.2024 filed by one Raj Chakravarty who is the Special Commissioner & Special Secretary to the Government of Assam, Public Works (Building and National Highway) Department is brought on record. In the said affidavit, there are various documents enclosed.
3. Before taking into account those documents, this Court finds it relevant to refer to the Notice Inviting Tender which is Annexure-O to the writ petition. The said Notice Inviting Tender was issued on 28.11.2023 pertaining to the work of "Maa Kamakhya Temple Access Corridor" at Guwahati. In the said Notice Inviting Tender, the brief particulars of the work as well as the scope of the work have been duly mentioned in the technical bid (Civil Work Section). A perusal of the scope of the work though mentions various aspects, but it is not clear as to whether the Geotechnical Investigation including Hydrogeological and Geophysical Page No.# 5/9 Investigation is a part of the scope of the work. This aspect is relevant taking into consideration that the Memorandum of Understanding between the PWD (Building) Department and the Indian Institute of Technology, Guwahati was entered into only on 25.06.2024.
4. In the said backdrop, let this Court now takes note of the affidavit so filed on 06.08.2024 by the respondent No.6. From a perusal of the documents enclosed to the affidavit, it is seen that the Executive Engineer, PWD had written a letter to the Head of the Department, Department of Civil Engineering, Indian Institute of Technology, Guwahati (for short, 'IITG') wherein it was mentioned that a meeting was held at IITG regarding survey of Hydrogeological and Geophysical Investigation wherein a specialized consultant, i.e. PARSAN Overseas Private Limited had presented technical proposal for conducting the said investigation. The proposal which was received through the respondent No.10, i.e. the L&T Construction was submitted to the Head of the Department, IITG, Department of Civil Engineering. The said proposal forms a part of the Annexure-I to the affidavit dated 06.08.2024. It transpires therefrom that a letter was issued by the Project Manager of the respondent No.10 to the Executive Engineer, PWD (Building) thereby submitting the technical proposal for conducting the Hydrological and Geophysical Investigation as submitted by the specialized consultant and the PWD (Building) Department was requested to review the same and provide the respondent No.10 with the inputs to proceed further. The proposal submitted by a Company, namely, PARSAN Overseas Private Limited is a part of the said affidavit which is at Page No. 445 wherein various details have been mentioned as to how the Hydrogeological survey and the Page No.# 6/9 Geophysical Investigation would be carried out. In addition to that, it also mentions the terms of payment at Clause No.5. The report further states that the same had been prepared for the respondent No.10.
5. Upon receipt of the said report submitted by PARSAN Overseas Private Limited, the Head of the Department of Civil Engineering, IITG had reverted back by issuance of a communication on 18.07.2024 making various observations on the said proposal. It is also seen at Clause No.6 of the said communication dated 18.07.2024 that the IITG has also sought for the notable case histories where PARSAN Overseas Private Limited was involved in groundwater flow and spring investigation of hilly regions. To the said communication dated 18.07.2024 issued by the IITG, the Cluster Project Manager, Northeastern Region of the respondent No.10 had submitted a reply on 26.07.2024 which was forwarded by the Executive Engineer, PWD to the Head of the Department, Department of Civil Engineering on 26.07.2024 itself. The said reply so submitted by the L&T also includes various documents which have been marked as Annexure-A and Annexure-B. Pursuant thereto, the Head of the Department of Civil Engineering, IITG had written a communication to the Executive Engineer, PWD on 03.08.2024. The contents of the said communication, being relevant, is reproduced herein under:-
"To Executive Engineer, PWD Jalukbari & Guwahati West Territorial Building Division Jalukbari, Guwahati 781 013, Assam Sub: Regarding the project "Maa Kamakhya Temple Access Corridor at Guwahati, Assam".
Ref: (1) TB/110-J&GWTBD/2023-24/ 6769 dated 26-07-2024 Page No.# 7/9 (2) TB/110-J&GWTBD/2023-24/3/63-69 dated 09-07-2024 Dear Sir, We have reviewed the clarification provided by L&T. The proposed procedure may be adopted to study the eternal spring of the Maa Kamakhya hills. However, data should be collected at a finer resolution to ensure the identification of smaller features. Additionally, the scope of work should include mapping the path of the subsurface springs to their downstream emergence point. Since most construction activities will occur at a lower elevation than the temple, the study must ensure that recharge zones are protected and that the downstream flow from the temple remains unobstructed.
Yours faithfully, (Rajib Kumar Bhattacharjya)"
6. Mr. D. Saikia, the learned Advocate General, Assam submitted that the PWD (Building) does not have expertise on its own, but in view of the contract entered into with the respondent No.10, the contractor, i.e. the respondent No.10 shall do it through expert agencies, and in that regard, the respondent No.10 has roped in PARSAN Overseas Private Limited which is an expert body to carry out such investigation. The learned Advocate General further referring to the MoU dated 25.06.2024 drew the attention of this Court to the scope of the work and submitted that it is only upon the vetting by the IITG to the Geotechnical Investigation/foundation selection, structural design and drawing work plan and execution methodology, the construction portion of the EPC contract can be proceeded with. The learned Advocate General further drew the attention of this Court to Annexure-A of the MoU dated 25.06.2024 and referred to the designated work responsibility assigned to the PWD (Building) which are for providing all available information Page No.# 8/9 regarding existing project site as per requirement of IITG and Geotechnical Investigation of area by engaging third party agency as per advice of the IITG. He submitted that all other responsibilities are with the IITG that is specifying of area where Geotechnical Investigation would be carried out; technical advice on the examination of Geotechnical Investigation report prepared by the PWD (Building) of the area including the observations related to the identified subsurface features as stated in the report; vetting of Geotechnical Investigation/foundation selection report submitted by the PWD (Building) for the new construction related project as well as the vetting of structural design and drawing work plan and execution methodology provided by the PWD (Building). The learned Advocate General therefore submitted that from a perusal of the materials which is the MoU entered into on 25.06.2024 and the documents which have been enclosed to the affidavit filed on 06.08.2024, it would be seen that the authorities concerned have been taking due steps so that there would be no damage to the sacred natural water springs due to the construction of the "Maa Kamakhya Temple Access Corridor".
7. This Court upon perusal of the materials on records and the submissions so made by the learned Advocate General has put a specific query to Mr. R. Borpujari, the learned counsel representing the respondent No.10 as to whether the Geotechnical Investigation including the Hydrogeological and Geophysical Investigation is a part of the EPC contract so awarded to the respondent No.10. This Court further enquired with the counsel for respondent No.10 as to whether the expert agency PARSAN Overseas Private Limited is engaged separately or is a part of providing the expertise included within the scope of the EPC contract so Page No.# 9/9 awarded to the respondent No.10. Mr. R. Bopujari, the learned counsel representing the respondent No.10 submits that he would take instructions in that regard.
8. List the matter again on 22.08.2024. The respondent No.10 shall bring on record their stand by way of affidavit. The respondent-State of Assam is given the liberty to file additional pleading bringing on record, the contract entered into with the respondent No.10.
JUDGE Comparing Assistant