Court on Its Own Motion Vs. The State of Jharkhand Through the Chief Secretary and Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/110589
CourtJharkhand High Court
Decided OnJul-25-2017
AppellantCourt on Its Own Motion
RespondentThe State of Jharkhand Through the Chief Secretary and Ors
Excerpt:
in the high court of jharkhand at ranchi w.p.(pil)no. 3503 of 2014 the court on its own motion vrs. union of india & others with w.p.(pil)no. 2470 of 2015 the court on its own motion vrs. the state of jharkhand & others ….... coram: hon’ble mr. justice aparesh kumar singh hon’ble mr. justice b. b. mangalmurti for the petitioner : m/s delip jerath, amritansh vats for the resp.-state : mr. r.r. mishra, g.p.ii for the resp.- nhai : m/s anil kumar sinha, sweety topno for the resp.-agency : mr. anoop kumar mehta 43/25.07.2017 the instant public interest litigation was initiated suo motu by the order dated 14.7.2014 on the basis of a newspaper report alleging large scale cutting of trees in an indiscriminate manner for the purpose of road construction in the state at various places. several orders were passed one after the other. sometime during the the course of proceedings the issue relating to delay in four-laning of ranchi-jamshedpur national highway (nh-33) was also taken up. the agency m/s ranchi expressways ltd, madhucon house, hyderabad was impleaded as party. an inspection was also carried out by the court appointed pleader commissioner in respect of the repairing work done on the nh-33 from ranchi to jamshedpur. a report was also submitted before this court on 8.5.2017. this court took note of the delay in construction of the nh-3 on the ranchi-jamshedpur stretch by the order dated 8.6.2017. the respondent- agency was required to indicate as to the time period within which the construction of the road is likely to be completed. an affidavit to that effect was also filed on 28.6.2017 and again on 30.6.2017. the affidavit of 28.6.2017 raised certain issues relating to execution of the project. the agency gave a time line of may, 2018 within which the stretch of road of about 88.029 km were to be completed. in the affidavit of 30.6.2017 the respondent agency also gave their status of finances. it was stated therein that the agency has invested 408.14 crores and received financial assistance from financial institutions to the tune of rs. 919.73 crores as loan.2. it is pertinent to point out here that this whole work is under design, build, finance, operate and transfer (dbfot) annuity basis under nhdp phase-iii. in essence, it means that the agency has to arrange finances for execution of work. the cost of execution of the project would be realized through annuity. as per the agreement, stipulated date of completion was 04.06.2015. the construction period was 912 days. the affidavit of 2 28.6.2017 and 30.6.2017 were perfunctory in the sense that it did not provide the details of the entire work to be executed.3. on 10.7.2017 when the matter was taken up a number of issues were deliberated during course of argument. these are essentially (i) the work schedule programme / revised work programe, if any submitted by the agency and / or approved by the national highway authority of india (nhai) to ensure execution of the work by may 2018; (ii) the extent of progress of work as on date and the latest work programme; (iii) bar chart showing progress of the work as per the work programme; (iv) areas in which there are difficulties in the execution of project in view of the awaited forest clearance, land related issues i.e., acquisition of land / removal of encroachment; any change in the scope of work midway etc. the agency has thereafter filed a detailed affidavit on 18.7.2017. they have also enclosed the agreement itself.4. the matter was taken up yesterday. learned counsel for the respondent agency, mr. anoop kr. mehta tried to take this court through the bar diagram showing the progress of work and the areas which are required to be addressed. the matter was adjourned to enable the officials of nhai also to examine and verify the issues raised by the agency and put forth their stand so far as the stage of the execution of work and the areas which have to be addressed. they have also produced the bar chart prepared by them today. mr. ramesh prasad singh, chief general manager cum regional officer, nhai, jharkhand, mr. devendra kumar gupta, project director, project implementation unit, nhai, ranchi and mr. b. ramchandra, authorized signatory, rel cum project in-charge, ranchi expressway ltd. are present in court today on behalf of nhai and agency. mr. rash bihari singh, engineer in-chief , road construction department, government of jharkhand, ranchi is also present to assist the court through learned g.p.ii, mr. r.r. mishra.5. it may be pointed out at this stage that one stretch of nh-33, which is in the process of fourlaning starts from the point commonly known as vikash vidyalaya to swastik enterprises at rampur. for execution of this stretch of work, the road construction department of the state government has entered into an agreement with the nhai. the said work is also being executed by the same agency.6. broadly speaking, from what has been explained to us by learned counsel for the respondent no.6-agency and the nhai, we find that work 3 has been done in patches in the entire stretch of road from rampur till mahulia. we may clarify here that from the stand of the agency as well as nhai, there are patches in the stretch of highway in which the progress of work could be inhibited such as on account of land related issues ; forest clearance awaited; change of scope( construction of flyover at 5 stretches of approximately 1km length each to provide for an elephant under pass in the section at chandil). there are 2 flyovers to be constructed in the stretch of road falling within the jamshedpur city.7. the bar chart also shows that dense bitumen macadam (dbm) work has been completed in some stretches indicated in black while clearing and grubbing work shown in light green colour is also being undertaken in majority of stretches. there are certain white space blocks in the bar chart furnished by nhai, which though do not disclose encumbrance of any nature, but no construction activity has been shown. we have been taken through various provisions of the agreement also which lay down the penal consequences for failing to meet the milestone on the part of the agency. we are yet to be informed by the nhai about any such action taken under the structured mechanism provided in the agreement against the agency for failure to meet the milestone. the nhai may have to explain on this aspect also.8. broadly speaking it can be discerned from the details furnished by the agency through the bar charts and also by nhai and upon consideration of the submission of the learned counsel for the agency and nhai that work in relation to areas which do not suffer from any encumbrance, such as land related issues, forest issues or change of scope of work should have been withheld or delayed for any reason. so far as the patches which may have a certain land/ forest or other encroachment issues, they are to be addressed within stipulated period by the statutory agency, whether it be by the state authorities or by the forest authorities etc. for the remaining work to be executed in right earnest even from this stage,( by which time reportedly about 44% work has been executed) the agency and the nhai both have to give clear cut milestones to be achieved by last date of every month. it is the nhai and its officials who along with the agency have to put clear cut milestones as indicated above to be achieved in order to ensure that entire fourlaning of nh-33 is completed within stipulated period of time. if we leave the state of affairs as it stands now and wait till 31.5.2018 to get the latest 4 update, we are sure that work would not be completed or even be near completion, given the history of delays in its execution.9. it is needless to observe here that this stretch of nh-33 is one of the commercial lifeline of the state. we have been informed that about 7000 vehicles on an average ply on this road every day and night. there are heavy vehicles and very heavy vehicles which ply on this road carrying materials such as steel products and other materials manufactured by tata steel limited and other such companies. if we may take a judicial note of this fact, we can also observe that large number of accidents leading to fatal or near fatal injuries take places almost on regular basis in this stretch of the national highway. therefore, there is a larger human aspect of the matter as well. the construction of this nh-33 fourlane highway at the earliest would ensure much greater communication and efficiency in transportation and also bring up the area in terms of development index.10. having observed as above, we therefore consider it proper to direct the nhai and the agency to come out with clear milestones in respect of the execution of work in the areas which do not suffer from any encumbrance on month to month basis giving specific milestone to be achieved by the last date of each month so that the entire work is executed in a time bound manner henceforth. we would monitor the progress of the work also and make the agency and/or the nhai accountable for the delay in meeting the milestones. we at the same time also direct the nhai to state on affidavit clearly the patches of road which suffer from some encumbrance relating to land acquisition issue/ encroachment issue/ forest clearance / change of scope of work etc. so that on the next date the state authorities can be directed to resolve those issues at their end in a time bound manner. the agency on its part shall file an affidavit in clear terms containing the entire details of its plant and machinery, work force and resources including financial resources, which it intends to employ/ deploy for speedy execution of the project as per the milestones.11. let the matter appear on 31.7.2017. (aparesh kumar singh, j.) (b.b.mangalmurti, j.) kamlesh / a.mohanty
Judgment:

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(PIL)No. 3503 of 2014 The Court on its Own Motion Vrs. Union of India & others with W.P.(PIL)No. 2470 of 2015 The Court on its Own Motion Vrs. The State of Jharkhand & others ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE B. B. MANGALMURTI For the Petitioner : M/s Delip Jerath, Amritansh Vats For the Resp.-State : Mr. R.R. Mishra, G.P.II For the Resp.- NHAI : M/s Anil Kumar Sinha, Sweety Topno For the Resp.-Agency : Mr. Anoop Kumar Mehta 43/25.07.2017 The instant Public Interest Litigation was initiated suo motu by the order dated 14.7.2014 on the basis of a newspaper report alleging large scale cutting of trees in an indiscriminate manner for the purpose of road construction in the State at various places. Several orders were passed one after the other. Sometime during the the course of proceedings the issue relating to delay in four-laning of Ranchi-Jamshedpur National Highway (NH-33) was also taken up. The agency M/s Ranchi Expressways Ltd, Madhucon House, Hyderabad was impleaded as party. An inspection was also carried out by the Court appointed Pleader Commissioner in respect of the repairing work done on the NH-33 from Ranchi to Jamshedpur. A report was also submitted before this Court on 8.5.2017. This Court took note of the delay in construction of the NH-3 on the Ranchi-Jamshedpur stretch by the order dated 8.6.2017. The Respondent- Agency was required to indicate as to the time period within which the construction of the road is likely to be completed. An affidavit to that effect was also filed on 28.6.2017 and again on 30.6.2017. The affidavit of 28.6.2017 raised certain issues relating to execution of the project. The Agency gave a time line of May, 2018 within which the stretch of road of about 88.029 KM were to be completed. In the affidavit of 30.6.2017 the Respondent Agency also gave their status of finances. It was stated therein that the Agency has invested 408.14 crores and received financial assistance from financial institutions to the tune of Rs. 919.73 crores as loan.

2. It is pertinent to point out here that this whole work is under Design, Build, Finance, Operate and Transfer (DBFOT) annuity basis under NHDP Phase-III. In essence, it means that the Agency has to arrange finances for execution of work. The cost of execution of the project would be realized through annuity. As per the agreement, stipulated date of completion was 04.06.2015. The construction period was 912 days. The affidavit of 2 28.6.2017 and 30.6.2017 were perfunctory in the sense that it did not provide the details of the entire work to be executed.

3. On 10.7.2017 when the matter was taken up a number of issues were deliberated during course of argument. These are essentially (i) the work Schedule Programme / Revised Work Programe, if any submitted by the Agency and / or approved by the National Highway Authority of India (NHAI) to ensure execution of the work by May 2018; (ii) The extent of progress of work as on date and the latest work programme; (iii) Bar chart showing progress of the work as per the work programme; (iv) Areas in which there are difficulties in the execution of project in view of the awaited forest clearance, land related issues i.e., acquisition of land / removal of encroachment; any change in the scope of work midway etc. The Agency has thereafter filed a detailed affidavit on 18.7.2017. They have also enclosed the agreement itself.

4. The matter was taken up yesterday. Learned counsel for the Respondent Agency, Mr. Anoop Kr. Mehta tried to take this Court through the Bar diagram showing the progress of work and the areas which are required to be addressed. The matter was adjourned to enable the Officials of NHAI also to examine and verify the issues raised by the Agency and put forth their stand so far as the stage of the execution of work and the areas which have to be addressed. They have also produced the bar chart prepared by them today. Mr. Ramesh Prasad Singh, Chief General Manager cum Regional Officer, NHAI, Jharkhand, Mr. Devendra Kumar Gupta, Project Director, Project Implementation Unit, NHAI, Ranchi and Mr. B. Ramchandra, Authorized Signatory, REL cum Project In-charge, Ranchi Expressway Ltd. are present in Court today on behalf of NHAI and Agency. Mr. Rash Bihari Singh, Engineer In-Chief , Road Construction Department, Government of Jharkhand, Ranchi is also present to assist the Court through learned G.P.II, Mr. R.R. Mishra.

5. It may be pointed out at this stage that one stretch of NH-33, which is in the process of fourlaning starts from the point commonly known as Vikash Vidyalaya to Swastik Enterprises at Rampur. For execution of this stretch of work, the Road Construction Department of the State Government has entered into an agreement with the NHAI. The said work is also being executed by the same Agency.

6. Broadly speaking, from what has been explained to us by learned counsel for the Respondent no.6-Agency and the NHAI, we find that work 3 has been done in patches in the entire stretch of road from Rampur till Mahulia. We may clarify here that from the stand of the Agency as well as NHAI, there are patches in the stretch of Highway in which the progress of work could be inhibited such as on account of land related issues ; forest clearance awaited; change of scope( construction of Flyover at 5 stretches of approximately 1km length each to provide for an Elephant Under pass in the section at Chandil). There are 2 Flyovers to be constructed in the stretch of road falling within the Jamshedpur City.

7. The bar chart also shows that Dense Bitumen Macadam (DBM) work has been completed in some stretches indicated in black while clearing and grubbing work shown in light green colour is also being undertaken in majority of stretches. There are certain white space blocks in the bar chart furnished by NHAI, which though do not disclose encumbrance of any nature, but no construction activity has been shown. We have been taken through various provisions of the agreement also which lay down the penal consequences for failing to meet the milestone on the part of the Agency. We are yet to be informed by the NHAI about any such action taken under the structured mechanism provided in the agreement against the Agency for failure to meet the milestone. The NHAI may have to explain on this aspect also.

8. Broadly speaking it can be discerned from the details furnished by the Agency through the bar charts and also by NHAI and upon consideration of the submission of the learned counsel for the Agency and NHAI that work in relation to areas which do not suffer from any encumbrance, such as land related issues, forest issues or change of scope of work should have been withheld or delayed for any reason. So far as the patches which may have a certain land/ forest or other encroachment issues, they are to be addressed within stipulated period by the statutory Agency, whether it be by the State authorities or by the Forest authorities etc. For the remaining work to be executed in right earnest even from this stage,( by which time reportedly about 44% work has been executed) the Agency and the NHAI both have to give clear cut milestones to be achieved by last date of every month. It is the NHAI and its officials who along with the Agency have to put clear cut milestones as indicated above to be achieved in order to ensure that entire fourlaning of NH-33 is completed within stipulated period of time. If we leave the state of affairs as it stands now and wait till 31.5.2018 to get the latest 4 update, we are sure that work would not be completed or even be near completion, given the history of delays in its execution.

9. It is needless to observe here that this stretch of NH-33 is one of the commercial lifeline of the State. We have been informed that about 7000 vehicles on an average ply on this road every day and night. There are heavy vehicles and very heavy vehicles which ply on this road carrying materials such as Steel products and other materials manufactured by Tata Steel Limited and other such companies. If we may take a judicial note of this fact, we can also observe that large number of accidents leading to fatal or near fatal injuries take places almost on regular basis in this stretch of the National Highway. Therefore, there is a larger human aspect of the matter as well. The construction of this NH-33 Fourlane Highway at the earliest would ensure much greater communication and efficiency in transportation and also bring up the area in terms of development index.

10. Having observed as above, we therefore consider it proper to direct the NHAI and the Agency to come out with clear milestones in respect of the execution of work in the areas which do not suffer from any encumbrance on month to month basis giving specific milestone to be achieved by the last date of each month so that the entire work is executed in a time bound manner henceforth. We would monitor the progress of the work also and make the Agency and/or the NHAI accountable for the delay in meeting the milestones. We at the same time also direct the NHAI to state on affidavit clearly the patches of road which suffer from some encumbrance relating to land acquisition issue/ encroachment issue/ forest clearance / change of scope of work etc. so that on the next date the State authorities can be directed to resolve those issues at their end in a time bound manner. The Agency on its part shall file an affidavit in clear terms containing the entire details of its plant and machinery, work force and resources including financial resources, which it intends to employ/ deploy for speedy execution of the project as per the milestones.

11. Let the matter appear on 31.7.2017. (Aparesh Kumar Singh, J.) (B.B.Mangalmurti, J.) Kamlesh / A.Mohanty