Patna High Court
Ajay Kumar Singh vs The Union Of India on 15 December, 2022
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1204 of 2021
======================================================
Ajay Kumar Singh Son of Late (Capt.) Braj Bhushan Prasad Singh @ Braja
Bhushan Singh, Resident of Village - Chapar (Jorawar), Post Office - Chapar,
Police Station- Mohiuddin Nagar, District - Samastipur.
... ... Petitioner/s
Versus
1. The Union of India through Secretary, Government of India, Ministry of
Road Transport and Highways, Transport Bhawan, Parliament Street, New
Delhi - 110001.
2. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
3. The Principal Secretary, Road Construction Department, Government of
Bihar, Patna.
4. The Development Commissioner, Government of Bihar, Patna.
5. The Principal Secretary, Finance Department, Government of Bihar, Patna.
6. The Principal Secretary, Revenue and Land Reforms, Government of Bihar,
Patna.
7. The Zonal Chief Manager, State Bank of India, Zonal Office, J.C. Road
Branch, Patna.
8. The Managing Director, Bihar State Road Development Corporation Ltd.,
Bihar, Patna.
9. The Chief General Manager, Bihar State Road Development Corporation
Ltd., Bihar, Patna.
10. The Project Director, N.H.A.I., Darbhanga.
11. The District Magistrate, Patna.
12. District Magistrate, Samastipur.
13. The Director, Navayuga Jahnavi Toll Bridge Private Limited , H.No. 8-2-
293/82/A/379 and 379/A, 2nd Floor, Plot No. 379, Road No. 10, Jubilee
Hill, Hyderabad TG - 800033, Regional Office - Near Chand Hospital,
House No. 171, Pataliputra Colony, Patna - 800013, Tele FAX - 0612-
2274557.
14. The Chairman, Managing Director, Head Quarters, The IL4FS Financial
Centre, Plot No. C22, G Block Bandra Kurla Complex, Bandra East
Mumbai - 400051, 02226533038, 265333333232.
... ... Respondent/s
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with
Civil Writ Jurisdiction Case No. 2255 of 2021
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M/s Navayuga Jahnvi Toll Bridge Private Ltd. Registered office at House
No.8-2-293/82/A379/A, 2nd floor, Plot No.379, Road No.10, Jubliee Hills,
Hyderabad through its Authorized Representative Yerra Gopi Srinivasa Babu,
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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Son of Shri Y.L.H. Kesavarao, Resident of Temple Street, Uppuluru, PS-Undi,
District-West Godavari, Andhara Pradash
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Main Secretariat, Baily
Road, Patna.
2. The Principal Secretary, Road Construction Department, Government of
Bihar, Patna
3. The Bihar State Road Development Corporation Ltd. Through its Managing
Director, Office at RCD Central Mechanical Workshop Campus,
Sheikhpura, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 4640 of 2021
======================================================
M/s. Navayuga Jahnvi Toll Bridge Pvt. Ltd., having its registered office at
House No. 8-2-293/A379/A, 2nd Floor, Plot No. 379, Road No. 10, Jubliee
Hills, Hyderabad through its Authorized Representative Yerra Gopi Srinivasa
Babu, Male, aged about 39 yrs. S/o Shri Y.L.H. Kesavarao, Resident of
Temple Street, Uppuluru, P.S.-Undi, Dist-West Godavari, Andhra Pradesh.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Main Secretariat, Patna.
2. The Development Commissioner, Government of Bihar, Main Secretariat,
Patna.
3. The Principal Secretary, Road Construction Department, Government of
Bihar, Patna.
4. The Bihar State Road Development Corporation Limited through its
Managing Director, office at RCD Central Mechanical Workshop Campus,
Sheikhpura, Patna.
5. The Managing Director, Bihar State Road Development Corporation
Limited, office at RCD Central Mechanical Workshop Campus, Sheikhpura,
Patna.
6. The State Bank of India through its Deputy General Manager (on behalf of
Consortium), Stressed Assets Management Branch-II, Hyderabad, Branch
Code-18359, D. No. 3-4-1013/A, 1st Floor, CAC, TSRTC Bus Station,
Kachiguda, Hyderabad-500027.
7. The Punjab National Bank through its Assistant General Manager, Large
Corporate Branch at 8-2-672, Sufi Chambers, Road No. 1, Banjara Hills,
Hyderabad-500034.
8. Regional Director Reserve Bank of India, Patna Region, Patna.
9. Regional Director Reserve Bank of India, Hyderabad Region, Hyderabad.
10. Dy. Governor Reserve Bank of India, Head Office, Mumbai (Maharashtra).
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 1204 of 2021)
For the Petitioner/s : Mr. Surendra Kumar Mishra, Advocate
Mr. Amit Kashyap, Advocate
For the Respondent/s : Dr. K.N. Singh, ASG
Mr. Lalit Kishore, AG
Mr. Pawan Kumar, AC to AG
Mr. Kumar Priya Ranjan, Advocate
(In Civil Writ Jurisdiction Case No. 2255 of 2021)
For the Petitioner/s : Mr. S.D. Sanjay, Sr. Advocate
Mr. Mohit Agarwal, Advocate
Ms. Parul Prasad, Advocate
Ms. Sushila Agrawal, Advocate
For the Respondent/s : Mr. Lalit Kishore, AG
Mr. Pawan Kumar, AC to AG
Dr. K.N. Singh, ASG
Mr. Kumar Priya Ranjan, Advocate
(In Civil Writ Jurisdiction Case No. 4640 of 2021)
For the Petitioner/s : Mr. S.D. Sanjay, Sr. Advocate
Mr. Mohit Agarwal, Advocate
Ms. Parul Prasad, Advocate
Ms. Sushila Agrawal, Advocate
For the Respondent/s : Mr. Lalit Kishore, AG
Mr. R.B. Pd. Yadav, AAG-11
Mr. Manishdhari Singh, Advocate
Mr. Kumar Priya Ranjan, Advocate
Mr. Prabhakar Nath Rai, Advocate
Mr. Mritunjay Kumar, Advocate
For the S.B.I. : Mr. Y.B. Giri, Sr. Advocate
Mr. Sanjeev Kumar, Advocate
For the R.B.I. : Mr. Chitranjan Sinha, Sr. Advocate
Mr. Amit Prakash, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 15-12-2022
Heard learned counsel for the parties.
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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In C.W.J.C No. 1204 of 2021, petitioner has prayed
for the following relief(s):-
"That, the petitioner craves indulgence of this
Hon'ble Court for issuance of an appropriate writ by
way of Public Interest Litigation is beings filed on
behalf of the petitioner in the nature of mandamus or
any other appropriate writ / writs, order / orders,
direction / directions, command / commands for
directing the respondents to construct the Bakhtiyarpur
Tanjpur & 4 lone green filed bridge, currently under
construction will span the river Gangages connecting
Bakhtiyarpur in Patna District and Tajpur in Samastipur
District, State of Bihar, the bridge will provide an easy
roadways link between the northern and southern parts
of Bihar total length is 5.575 metres width is 15 meters,
no. of lanes- 4 constriction started on June 2011 and
completion year was fixed on 2016 but up till now only
47% works has been completed.
This bridge will reduce the land on Mahatma
Gandhi Setu and also reduce the traffic in the capital
city of Patna.
The bridge will also required construction of
45.33 of approach road on both ends of the bridge.
The total cost of project is estimated at Rs.
1602.74 Crore, out of which Rs. 100 Crores will be
spent on acquired land. At first Rs. 917.74 Crore is to
be invested by Navayuga (Engineering Company
Limited (HECL) Navayuga Jahnavi Toll Bridge Pvt.
Ltd.) as a viability gap fund on a PPP, Public Private
Partnership Mode basis Rs. 277.50 Crore by the State
Government Bihar would also bear the cost of
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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acquiring land NECL, a Headerabad based firm was
selected through competitive bidding."
In C.W.J.C. No. 2255 of 2021, petitioner has prayed
for the following relief(s):-
"i) For holding and declaring that Section 3(3)(b)
of the Bihar Public Works Contracts Disputes
Arbitration Tribunal Act, 2008 (hereinafter referred as
the "the Bihar Tribunal Act" for the shake of brevity) is
ultra virus to the provisions of the constitution as the
eligibility criteria provided for being appointed as
member of the Arbitral Tribunal under the Bihar
Tribunal Act is in teeth of Section 12 of the Arbitration
and Conciliation Act, 1996;
ii) For a declaration that the Bihar Tribunal Act
since have no assent of the Hon'ble President of India,
hence, in view of the repugnancy of Section 3(3)(b)
with Section 12 of the Arbitration and Conciliation Act,
1996, the Bihar Tribunal Act has to give way to the
Central Act i.e. the Arbitration and Conciliation Act,
1996;
iii) For a declaration that in the present case the
provisions of the Arbitration and Conciliation Act, 1996
shall govern the disputes between the Petitioner and the
Respondents in view of Section 12(5) of the Arbitration
and Conciliation Act, 1996;
iv) For a declaration that the Concession
Agreement in the present case in the form it has been
entered into does not fall within the meaning of the
Works Contract as defined in Section 2(k) of the Bihar
Public Works Contracts Disputes Arbitration Tribunal
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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Act, 2008, hence the dispute can not be resolved under
the said Act;
v) For a declaration that with respect to the
disputes between the parties which have arisen out of
the Concession Agreement entered between the parties
dated 8.10.2010 for the development of Greenfield
Bridge across river Ganges and its approaches
connecting Bakhtiyarpur Bypass of NH-31 near
Village- Karjan and NH-28 at Tajpur in the State of
Bihar on Design, Build, Finance, Operate and Toll
("DBFOT") basis and in effect a license for the work is
not covered in the definition of the work contract hence
the arbitration can be held under the provisions of
Arbitration and Conciliation Act, 1996 and not under
the Bihar Tribunal Act;
vi) For quashing of decision of the Respondent
Bihar State Road Development Corporation Ltd.
communicated through letter no. 4391 dt. 21.10.2020
by which this Respondent has intimated that they are
approaching to the Bihar Works Contracts Arbitration
Tribunal under Section 9 r/w Section 22 of the Bihar
Tribunal Act, 2008 and/or for any other relief(s) for
which the Petitioner may be found entitled to in the
facts and circumstances of the present case."
In C.W.J.C. No. 4640 of 2021, petitioner has prayed
for the following relief(s):-
"i) For issuance of direction upon the
Respondents to release the Termination Payment
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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amounting to Rs. 1380.55 Crores under Clause 37.3 of
the Concession Agreement (CA) entered between the
parties dated 8.10.2010 for the development of the
Greenfield Bridge across the river Ganges and its
approaches connecting Bakhtiyarpur Bypass of NH-31
near Village Karjan and NH-28 at Tajpur in the State
of Bihar on Design, Build, Finance, Operate and Toll
("DBFOT") basis as the said payment is an admitted
liability of the respondent Bihar State Road
Development Corporation Ltd.;
ii) For a direction to the respondents to
immediately make termination payment to the
petitioner being the admitted liability of the
respondents Bihar State Road Development
Corporation Ltd. for repaying the loan liability (debt
liability) to the Bankers of the petitioner who had lend
money for this project and are entitled to get back their
money without any delay;
iii) For issuance of a direction upon the
Respondent to pay the Compensation of Rs. 1261.13
Crores to the Petitioner under Clause 35.2 and 35.4 of
the Concession Agreement dated 08.10.2010 for the
development of the Greenfield Bridge across the river
Ganges and its approaches connecting Bakhtiyarpur
Bypass of NH-31 near Village Karjan and NH-28 at
Tajpur in the State of Bihar on Design, Build, Finance,
Operate and Toll ("DBFOT") basis;
iv) For a direction to the Respondent Bank not to
declare the accounts maintained by the Petitioner or its
Promoter companies as Non-Performing Asset;
v) For a direction to the Respondent Banks to
adjust the amount received as Termination Payment
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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from Respondent No. 1, against the accounts
maintained by the Petitioner;
vi) For issuance of an appropriate writ
commanding the Respondents to discharge its
obligation under Law and contract which the
Respondents have failed which has prejudicially
affected the Petitioner apart from adversely effecting
the project for the development of the Greenfield
Bridge across the river Ganges and its approaches
connecting Bakhtiyarpur Bypass of NH-31 near
Village Karjan and NH-28 at Taijpur in the State of
Bihar on Design, Build, Finance, Operate and Toll
(DBFOT") basis; for any other relief(s) for which the
Petitioner may be found entitled to in the facts and
circumstances of the present case."
We are dealing with the project termed as "Tajpur-
Bakhtiyarpur Road-cum- Bridge over River Ganges connecting
Bakhtiyarpur in district Patna with Tajpur in district Samastipur
at Bihar.
Pursuant to several orders passed by this Court from
time to time, parties have been interacting with an endeavour of
resolving the dispute.
On 12.09.2022 (Order No. 12), we had indicated that
even though the Contractor/Concessionaire had commenced the
work to be completed within the stipulated time i.e. 2016, the
work was stopped, inter alia, on account of financial issues.
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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The learned Advocate General repeatedly has been
highlighting the importance of the project and the desire and
endeavour of the State of having the same completed at the
earliest.
It is with this endeavour that a meeting of high level
officials was convened in the office of the Chief Secretary,
Government of Bihar.
Several affidavits stand filed by all the stakeholders,
including the State Bank of India, the lead manager of the
consortium of the Banks.
On 13.10.2022, we had passed the following order:-
"Deputy General Manager (Tech),
B.S.R.D.C.L. has filed his affidavit inter alia
pleading as under:
"06. That in Revised AA, following Waterfall
Mechanism has been proposed for repayment
of One Time Fund Infused by BSRDCL and
Lenders' debt:-
a. all taxes due and payable by the
Concessionaire.
b. all payments relating to construction
of the Project Highway, subject to and
in accordance with the conditions, if
any, set forth in the Financing
Agreements.
c. O & M Expenses, subject to the
ceiling, if any, set forth in the
Financing Agreement.
d. O & M Expenses incurred by the
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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Authority, provided it certifies to the
provisions of the Concession
Agreement and that the amounts
claimed are due to it from the
Concessionaire.
e. Concessionaire Fee due and payable
to the Authority.
f. Interest due and accrued on the
outstanding principal amounts of
BSRDCL OTFI Facility and lenders
debt in proportion (pari passu) of
respective principal amount of
Authority and lenders as arrived in
para 5(ii).
g. Principal outstanding under the
BSRDCL OTFI Facility and principal
outstanding under lenders debt in
proportionate (pari passu) basis. It is
clarified that the servicing of the
principal amount of BSRDCL OTFI
Facility as well as principal amount of
lenders debt shall not commence till
COD.
h. Debt service payments in respect of
Subordinated Debt.
i. Concessionaire's equity and other
investments will be recovered only
after the entire interest and Principal
component of BSRDCL OTFIS
Facility and Lender's debt with
interest is recovered completely.
07. That as per above Waterfall Mechanizm,
BSRDCL and the Lenders both have first
charge on proceeds of toll collection left after
meeting the expenses explained in para 6(a) to
6(e) on pari passu basis.
08. That the above conditions and Waterfall
Mechanism mentioned in revival proposal has
been approved by Council of Ministers, Govt.
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022
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of Bihar.
09. That any change in the above Waterfall
Mechanism approved by Council of Ministers
will need approval from the Council of
Ministers again.
10. That information in this regard has been
given to Road Construction Department
(RCD), Govt. of Bihar vide letter dated
30.09.2022.
11. That in the light of order passed on 27.09.2022, State will take necessary steps for following the bankers to have the first charge on the proceeds of toll collection after expenses explained in para 6(a) to 6(e) subject to unconditional acceptance by the Lenders to issue NOC.
12. That accordingly, the Respondent No.4 will put a proposal in this regard before BSRDCL Board of directors for approval at the earliest." It is also brought to our notice that now the State of Bihar is going to arrange funds of its own for completion of the remaining work. However, what is required is issuance of No Objection Certificate (for short N.O.C.) from the consortium of bankers, respondents herein.
Learned Advocate General states that there should be no difficulty in the Cabinet approving the Waterfall Mechanism evolved for revival of the proposal which, in principle, has the approval of the Government. Further, the first charge of the proceed from the collection of toll, after deducting expenses as set out in para-6 reproduced (supra), would be disbursed to the bankers/consortium of lender banks Patna High Court CWJC No.1204 of 2021 dt.15-12-2022 12/16 as a first charge.
Shri Y.V. Giri, learned Senior Advocate for the respondent Bank, under instructions, states that upon receipt of request for issuance of N.O.C., the same will be issued within one week, which would be subject to the approval of the proposal by the Cabinet.
Shri S.D. Sanjay, learned Senior Advocate for the petitioner, states that tomorrow itself, petitioner would approach the bankers for issuance of N.O.C. We direct that needful be done as recorded supra.
Further, with the issuance of N.O.C., the proposal be immediately placed before the Cabinet for necessary action.
List on 14.11.2022."
The Bank has filed its affidavit dated 10.11.2022.
We notice that the State has also filed its affidavit dated 12.11.2022 indicating its intent of ensuring early completion of the project.
On 07.12.2022, we had passed the following order:-
"Inviting attention of paragraph no. 17 of affidavit dated 11.11.2022, which is extracted hereinunder, Sri S.D. Sanjay, learned senior counsel for the petitioners, states that insofar as condition nos. Patna High Court CWJC No.1204 of 2021 dt.15-12-2022 13/16 a and c are concerned, there is no issue inter se the petitioners and the State Government. However, insofar as the issue b is concerned, the cap of 6% as agreed upon by the State, perhaps, needs to be re- visited. Paragraph no. 17 of affidavit dated 11.11.2022 reads as follows:-
"That in order to address this issue objectively, it is requested to the State Government for inserting a clause in the supplementary agreement as follows:
a. GST impact on cost of
construction to be compensated under
change in law provisions of the Concession Agreement;
b. Revising the cost within six months from Supplementary Agreement date taking SOR rates of the current year and prevailing market rates for items whose market rates have been taken in the present cost analysis.
c. The price variation in cost to be compensated and paid by BSRDC/State Government as claim not exceeding 6 months from Supplementary Agreement Date or reduce from OTFI in case of reduction."
Well, the Courts cannot re-write contracts inter se between the parties. However, if the petitioners desire to approach the State Government seeking modification thereof, it is always open for the Patna High Court CWJC No.1204 of 2021 dt.15-12-2022 14/16 petitioners to do so and the respondent State to independently take a decision thereupon.
As prayed for by Sri S.D. Sanjay, learned senior counsel for the petitioners, matter is adjourned.
List on 14.12.2022.
We clarify that no further adjournment shall be granted for such purpose."
Today, learned Advocate General invites our attention to two affidavits, both dated 13.12.2022. The subsequent affidavit, revising the averments made in the first affidavit, reads as under:-
"03. That in light of order passed by the Hon'ble High Court on 07.12.2022 in this regard, the petitioner has approached BSRDCL (Authority) vide its letter dated 08.12.2022 to consider the price adjustment as per the formula adopted in the EPC contract by keeping the base indices as in November 2021 and accordingly make adequate provision of OTFI so that the project can be revived, completed and put for public use to realize the investment made by each stakeholders.
04. That I have gone through the averments made in the aforesaid letter under reply and understood the same.
05. That the present supplementary affidavit is being filed by the answering respondent no. 4 in light order passed by the Hon'ble High Court on 07.12.2022 and the aforesaid letter of request.
06. That in reply to the aforesaid letter, it is to Patna High Court CWJC No.1204 of 2021 dt.15-12-2022 15/16 say that process for getting approval of change in Waterfall Mechanism only as per earlier order of Hon'ble Court, has already been initiated.
07. That regarding GST impact on cost of construction, it is to say that the same will be compensated as per the relevant provision made in Article-41 of Concession Agreement.
08. That regarding price escalation, it is to say that rates taken for calculating the cost of construction for OTFI are based on SOR effective on November 2021 excluding Contractor's profit as proposed by the petitioner. There is a provision of 6% price escalation in cost estimate of balance work. For the price adjustment, a methodology/ formula adopted in EPC Contracts for calculating the price escalation will be incorporated in Supplementary Agreement with taking base indices in November 2021, i.e. in the month of preparation of cost estimate of balance work. The cost impact due to GST & Price Adjustment will be taken care of by this provision of 6% price escalation made in cost estimate of balance work.
09. That it is further to say that in case the provision of 6% price escalation made in cost estimate of balance work will become insufficient to meet the cost impact due to GST & Price Adjustment, approval of revised cost of balance work will be taken from the Competent Authority.
10. That the answering respondent further humbly pray before this Hon'ble Court that to take follow-up action and monitor the progress of this Project of public importance."
Patna High Court CWJC No.1204 of 2021 dt.15-12-2022 16/16 The statement of the parties and the commitments made in terms of the affidavit, referred to supra, are accepted and shall be adhered to.
Ordered accordingly.
At this stage, Shri S.D. Sanjay, learned Senior Counsel states that there may be short fall in the finance/collection which may impede the execution of the work.
Well, all these issues we need not dilute any further, for we have already expressed our view and leave it to the parties to resolve themselves.
The petitions stand disposed of.
Interlocutory Application(s), if any, shall stand disposed of.
(Sanjay Karol, CJ) (Partha Sarthy, J) Amrendra/PKP AFR/NAFR CAV DATE Uploading Date 16.12.2022 Transmission Date