Himachal Pradesh High Court
CWPIL/212/2017 on 3 January, 2020
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
CWPIL No. 212 of 2017 03.01.2020 Present: Mr. Ramakant Sharma, Senior Advocate as Amicus Curiae with Mr. Basant Thakur, Advocate.
.
Mr. K.D. Shreedhar, Senior Advocate with Ms. Shreya Chauhan, Advocate, for the NHAI.
Mr. Ashok Sharma, Advocate General with Mr. Vinod Thakur, Addl. AG, Ms. Svaneel Jaswal, Mr. Narender Singh Thakur and Ms. Divya Sood, Dy. AGs, for the respondents-State.
Mr. Shashi Shirshoo, Central Government Standing Counsel, for the respondents-Union of India.
Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lall, Advocate, for M/s ILTN Ltd. r Kiratpur-Nerchowk Express Ltd.
Mr. Raman Sethi, Advocate, for respondent No. 9-M/s Pandoh Takoli Highway Pvt. Ltd.
Mr. Lokender Kanwar, Assistant Advisor to NHAI, in person.
Today, the learned Counsel for NHAI has filed an affidavit of the Project Director, Project Implementation Unit Mandi, National Highways Authority of India, in the open Court, which is made part of the Court file. As per the affidavit, the latest status of the projects is as under:
(i) Kiratpur-Nerchowk Project
a) A total of 84.38 km of road is to be four laned in this stretch. The construction/upgradation of this stretch was awarded to M/s Kiratpur Nerchowk Expressway Ltd. (KNCEL) on Design, Built, Finance, Operate & Transfer (DBFOT) mode. The work commenced w.e.f.
14th November, 2013 and likely date of completion of project was 13th November, 2016, but, due to financial crunch, the project was delayed by the Concessionaire and was further abandoned since June, 2018.
b) In view of clause No. 37.1.3 of the Concession Agreement, a copy of intention to Termination Notice dated 18.01.2019 was endorsed to the Senior Lead Bankers, stating the intention to ::: Downloaded on - 06/01/2020 20:26:12 :::HCHP ...2...
substitute the Concessionaire in accordance with the Substitution Agreement. However, the Lead Bankers showed their inability to .
replace the Concessionaire and failed to provide any substitute to the Authority, resulting in project remaining abandoned.
c) The aforesaid facts were sufficient to confirm and categorically establish that the Authority had provided enough opportunity to the Concessionaire. However, despite the said position and in complete breach of its unambiguous obligations under the Concession Agreement, the Concessionaire failed to comply with commitments contained in Concession Agreement.
d) In view of the above stated facts and huge public outcry, the Authority was left with no other alternative except to terminate the Concession Agreement with the Concessionaire M/s KNCEL. Accordingly, Termination Notice under Clause 37.1.2 of the Concession Agreement was issued to M/s KNCEL vide NHAI, RO letter No. NHAI/RO/HP/11017/1PD-Mandi/K-N/Main /1918 dated 22nd October, 2019.
e) Further, in compliance to the orders of this Court and to provide relief to road users, NHAI has initiated following actions for early completion of balance work:
(i) NHAI decided to take up balance work in phases. Accordingly, the Independent Engineer (IE) was asked to prepare cost of existing work executed by M/s KNCEL as well as details of balance work to be executed. The IE prepared the estimates in two phases.
The first phase, i.e. brown field (existing alignment) which includes stretch from Kiratpur to Kainchi Mod (Km 0.00 to Km 12.750) and from end of Bilaspur Bypass to end of project (Km 158.850 to Km 182.415) and the 2nd phase is green field aligned portion.
(ii) To obviate the hardship to the road users, to comply the directions of this Court and to expedite the execution of balance work in two phases letter of award for balance work of 1st phase stands issued to M/s Ceigal India Limited. The work commenced w.e.f. 27.11.2019 as per the agreement. Likely date of completion of 1st phase of this project, i.e. brown field alignment which will be along the existing ::: Downloaded on - 06/01/2020 20:26:12 :::HCHP ...3...
alignment of NH-21 is 26.11.2021. The completion of this four laning work which is along existing alignment will .
ensure availability of 30.3 km of four lane National Highway for NH users. However, some sub-contractors of previous Concessionaire, M/s KNCEL, who claim that their outstanding payments have not been cleared by the M/s KNCEL are trying to obstruct the construction work being carried out by the new contractor M/s Ceigal India Limited. They are demonstrating protests in front of O/o Deputy Commissioner, Bilaspur and have forwarded their representation stating that their outstanding payments be r released by NHAI. Since this project was on Design, Built, Finance, Operate and Transfer (DBFOT) basis, so it is not possible for NHAI to release their outstanding payments. Further, there are contractual disputes among M/s KNCEL and its sub-contractors which are beyond the scope of NHAI, hence are to be settled/resolved by M/s KNCEL and sub-contractors themselves. It is submitted that the Contract Agreement between NHAI & M/s KNCEL stands terminated on 22.10.2019. The 2nd phase, i.e. green field aligned portion, the matter of Bid preparation is under process.
(iii)For the safety of commuters and keeping in view the interest of general public at large the maintenance work of existing road is undertaken by NHAI from time to time.
f) Awards of 337 structures have been announced by CALA, Bilaspur and approved by NHAI, out of which, 306 structures stand removed and 31 are pending for removal in this section.
2 The NHAI is directed to remove pending 31 structures for which the Deputy Commissioner and Superintendent of Police, Bilaspur are directed to render all necessary assistance.
g) For utility shifting, i.e. tower lines including land acquisition cost an amount of Rs. 2.33 ::: Downloaded on - 06/01/2020 20:26:12 :::HCHP ...4...
crore stands released to HPSEBL towards shifting of towers No. 16, 17, 47 and 48.
.
Similarly, an amount of Rs. 5.24 crore stands released to AD Hydro for shifting of AD Hydro tower at village Dehvi. Further, Rs. 1.46 crore has been released in favour of PSTCL/BBMB for shifting of towers No. 105 and 107 of 220 KVA tower line, but, till date the tower lines could not be shifted and the same are causing hindrance.
3. Since funds for shifting of tower/AD Hydro tower are stated to have been released to HPSEBL, AD Hydro and PSTCL/BBMB, the HPSEBL, AD Hydro and BBMB are directed to expedite the work of electrical utility shifting. The same be done as expeditiously as possible and in no event later than 18th March, 2020, when compliance affidavit shall be filed by HPSEBL, AD Hydro and BBMB.
(ii) Nerchowk-Pandoh including Pandoh bypass Project:
a) A total of 26.29 km of road is to be four laned in this stretch. The construction/upgradation of this stretch has been awarded to M/s KMC Construction Ltd. on Engineering, Procurement and Construction (EPC) mode.
The work commenced w.e.f. 14th January, 2018 as per the agreement.
b) Due to non-fulfillment of its commitment to expedite the work M/s KMC was issued notice for intention to terminate contract under sub-clause 23.1.2 of EPC agreement vide letter dated 27.03.2019.
c) Mobilization of Contractor and the progress of work are still very slow. NHAI is persistently pursuing the contractor to expedite the progress. The contractor had given month wise program starting from June, 2019 to October, 2019 for execution of works amounting to Rs. 89.52 crores. Consequent to submission of work plan up to October, 2019 by M/s KMC construction Ltd. NHAI ::: Downloaded on - 06/01/2020 20:26:12 :::HCHP ...5...
closely observed monthly progress of works and found that the progress of project is very .
slow due to which it would not be possible for the contractor to complete the project within the revised time schedule. This is apparent from the fact that against the target of 10% set till October, 2019, the progress till 30th November, 2019 is only 4.42%.
d) The scope of four laning of 26.29 km of NH work includes 3 twin tube tunnels of total length of 4567 meters and 17 bridges. The progress of work is slow and overall physical progress of work as per latest progress report submitted by the Authority Engineer upto 30th November, 2019 is 4.42%.
e) The work on portal 1 and 2 of tunnel -1 is in progress and out of total length of 4567 meters only linear excavation of 45 meters has been achieved so far whereas on tunnel 2 and tunnel 3 work is yet to commence. It is submitted that out of 17 bridges i.e. (6 major and 11 minor) the work has been taken up only on 3 minor bridges out of which only 1 bridge has been completed. It is further submitted that the contractor is partially mobilized and has mobilized minimum manpower and machinery at site which is not sufficient as per the requirement of site.
4 Since the progress of work of this stretch is extremely slow to the extent of 4.42%, the authorized representatives of M/s KMC Construction Ltd. are directed to remain present before this Court on 8th January, 2020. The representative of NHAI shall inform the construction company accordingly.
f) Awards for 410 structures have been announced by CALA, Bilaspur and approved by NHAI out of which 405 structures stands removed and 5 (five) structure are pending for removal. It is submitted that entire awarded compensation amount towards the cost of acquisition of land/structures in this stretch has been deposited by the NHAI with the SLAU, Bilapur.
::: Downloaded on - 06/01/2020 20:26:12 :::HCHP...6...
5 The Deputy Commissioner and Superintendent of Police, Bilaspur are directed to .
render all necessary assistance to NHAI, which is directed to remove the remaining five structures, as early as possible.
(iii) Pandoh Bypass-Takoli Project:
a) A total of 18.217 km of road is to be four laned in this stretch. The construction/upgradation of this stretch has been awarded to M/s SP Pandoh Takoli Highway Pvt. Ltd. on Hybrid Annuity Mode (HAM). The work commenced w.e.f. 26th March, 2018 and the likely date of completion is 23rd September, 2021.
b) The scope of four laning of 18.217 km of NH work includes 4 (four)Twin Tube Tunnels and 2 (two) Single Tunnels and 14 Bridges. The overall physical progress of work as per latest progress report submitted by the independent Engineer upto 30th November, 2019, is 29.36%. The concessionaire is fully mobilized and work in this stretch is under progress. As per Concession Agreement 40% of the project cost is to be borne by the NHAI and remaining 60% by the Concessionaire i.e. M/s SP Pandoh Takoli Highway Pvt. Ltd.
c) A total of 103 private structures had been identified by the office of SLAU, Pandoh falling under the acquired road width. Awards have been announced for all structures and the same stands removed. It is submitted that recently 13 encroachments have been identified in this stretch by NHAI and the action is being taken for removal of the same.
6 The NHAI is directed to remove the abovesaid 13 encroachments before 18th March, 2020, for which purpose, all necessary assistance shall be rendered by Deputy Commissioner and Superintendent of Police, Mandi.
::: Downloaded on - 06/01/2020 20:26:12 :::HCHP...7...
(iv) Takoli-Kullu Project:
a) A total of 28.69 Km of road is to be four laned .
in this stretch. The construction/upgradation of this stretch has been awarded to M/s NKC Projects Pvt. Ltd. on Engineering Procurement & Construction (EPC) mode and the work commenced w.e.f. 2nd June, 2017. Likely date of completion of project was 29th November, 2019. However, the project has considerably been delayed.
b) The scope of four laning of 28.69 Km of NH work included 5 bridges and 3 VUPs/VOPs. The overall physical progress of work as per latest progress report submitted by the Authority Engineer upto 30th November, 2019 is 57.16%. Further, out of 5 bridges, work of 2 bridges has been completed. The contractor is mobilized and work in this stretch is under progress.
c) A total 666 structures have been identified in this section. Awards of 636 structures have been announced by SLAU Pandoh and approved by NHAI. Notices issued to 653 structures including 19 structures built after publication of 3A notification. 646 structures removed and 7 structures are pending for removal. Entire awarded compensation amount towards the cost of acquisition of land/structures in this stretch has been deposited by the NHAI with the SLAU, Pandoh.
d) DC Mandi, vide letters dated 4th October, 2019 and 18th November, 2019 has been requested to provide assistance for removal of remaining structures. Similarly, DC, Kullu vide letters dated 4th October, 2019, 15th October, 2019 and 11th November, 2019 has also been requested for providing assistance for removal of remaining structures.
e) 29 structures on Takoli-Kullu stretch were reported by SLAU, Pandoh as having been constructed after publication of 3A notification and therefore, considered as encroachments. The action for the removal of these structures has been taken by the NHAI and out of 29 structures 28 structures stand removed.
::: Downloaded on - 06/01/2020 20:26:12 :::HCHP...8...
f) In compliance to the order dated 24.04.2019, SLAU, Pandoh has prepared FDR's amounting to Rs. 21,65,04,155/- pertaining .
to 11 disputed structures/land. District Administration has been requested for assistance for removal of these structures.
7 The Deputy Commissioner and Superintendent of Police, Kullu, are directed to render all necessary assistance to NHAI for removal of aforementioned 11 disputed structures/land.
g) Due to delay in land acquisition process and various local issues, the project is behind schedule, however, all efforts are being made to complete the project by November, 2020.
h) The work for shifting of HPSEBL towers is to be initiated by the HPSEBL in this stretch for which funds amounting to Rs. 234.22 lacs stand deposited with HPSEBL and inspite of order dated 24th April, 2019, needful has not been done till date.
8 Since the funds have already been deposited with HPSEBL for shifting of towers, the HPSEBL is directed to shift the towers as expeditiously as possible and in no event later than 18th March, 2020.
9. As regards Kiratpur-Nerchowk Project, it was at the behest and insistence of respondent No. 10/KNCEL and ITNL that this Court directed the NHAI to release an amount of Rs. 25 crores to them, as would be evident from relevant portion of order dated 30.05.2018, which reads as under:
"Kiratpur-Nerchowk Lt. Col. Yogesh Chandra, Project Director, NHAI-PIU, Mandi, Competent/authorised authority shall file affidavit within one week indicating the status with regard to
(a) acquisition of land (b) hindrances, if ::: Downloaded on - 06/01/2020 20:26:12 :::HCHP ...9...
any, in the execution of the work by the contractor on Kiratpur-Nerchowk sector. The encumbrances as referred to in para-3 of the affidavit at page 753 may be .
clarified in the affidavit. Also it shall be clarified in the affidavit as to by what date the amount of Rs. 25 crores, as we are made to understand stand sanctioned, shall be released to the Contractor, Mr. R.L. Sood, learned Senior Advocate for the Contractor to respond to the same before the next date.
The Contractor shall also file his affidavit with regard to the progress of the work on this sector, more specifically, with regard to construction of bridges, structures and tunnels."
10. r On 12th September, 2018, when the matter came up before this Court, we asked respondent No. 10/KNCEL and ITNL to file affidavit(s) regarding the status of the amount of Rs. 25 crores, which had been ordered to be released in their favour vide order dated 30.05.2018.
11. Therefore, let respondent No. 10 file an affidavit stating therein the compliance of directions so passed by this Court on 30.05.2018 and 12.09.2018, if not already filed, by 6th March, 2020, for which purpose, list the matter on 18th March, 2020 alongwith CWPIL No. 249 of 2017.
12. For the presence of the authorized representatives of M/s KMC Construction Ltd., list on 8th January, 2020.
(Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
January 3, 2020
(raman/virender)
::: Downloaded on - 06/01/2020 20:26:12 :::HCHP
.
::: Downloaded on - 06/01/2020 20:26:12 :::HCHP