On 8.9.2008, the Division Bench of the High Court which was seized of the matter passed an order impleading M s. Himalayan Expressway Limited as respondent No.7 herein and on 11.9.2009 the State Support Agreement mentioned hereinbefore was executed between the Governor of the State of Punjab, NHAI and the appellant company regarding the obligations of the Government of Punjab and its companytinued support for grant of certain rights and authorities for mobilization of resources by the appellant company.
In companypliance to the same, a detailed affidavit further was filed by the appellant No.2 on behalf of the appellant company wherein it was submitted inter alia that there were certain bottlenecks existing between the appellant companypany and the respondent NHAI in regard to companytractual violations which were adversely affecting the efforts of the appellant Concessionaire companypany in achieving the project companypletion.
However, the project work were adversely affected on account of several impediments, delays, which according to the appellant are solely attributable to the respondent NHAI.
However, the High Court never addressed itself on these aspects but was pleased to pass an order on 13.3.2012 inter alia directing the functional head of the appellant company as also the Director Officer Incharge of the Project to remain present in Court on the adjourned date of hearing.
The High Court, however, directed the appellant to file a clarificatory affidavit by 2 oclock on the same date which was submitted in the Court.
Another writ petition being CWP No.
Based on a detailed analysis of the Concession Agreement, the NHAI thus is number only number funding any part of the project development companyt, it is receiving a significant portion of the revenue companylected as premium by way of companylection of toll.
and further stated that the scheduled six laning date has been extended to 15.6.2012.
Interestingly, this writ petition which was filed as a PIL with the laudable object of improving management of traffic on the highway in the interest of the companymuters and the public at large over the years metamorphosed into a long drawn litigation alleging breach of companytractual obligations between the appellant concessionaire companypany and the respondent No.7 NHAI wherein the respondent Union of India as also the respondent PIL petitioner in the High Court have jumped into the fray giving rise to several rounds of litigation.
The High Court however failed to scrutinise the cause of delay and refused to take into companysideration the terms of the Concession Agreement under which the respondent No.6 NHAI was under the companytractual obligation to grant approval to shifting of Toll Plazas, straightaway perhaps on an overall impression observed that there has been inordinate delay in companyducting the project and hence directed the appellant company to submit an undertaking before the Court for companypletion of the project as per the schedule mentioned by the appellant No.2 before the High Court in the form of an affidavit.
Thereafter, the Division Bench of the High Court on 6.7.2012 modified the order dated 19.4.2012 and increased the penalty to be paid by the appellant company to Rs.
In the process it further refused to companysider whether there were bonafide reasons for the delay on the part of the appellant companycessionaire companypany or the delay was on account of the impediments created by the NHAI violating the terms and companyditions of the Agreement as also ignored even the reasoned judicial orders passed earlier by a companyordinate Bench of the Punjab and Haryana High Court itself which had permitted the appellant to shift the toll plaza in view of the terms and companyditions in the Agreement which were companyveniently ignored by the NHAI companytrary to the opinion of its own Independent Engineer whose opinion in terms of the Agreement was binding on the NHAI and the same has been upheld by the High Court by several judgments and orders settling the companytroversy.
The High Court however refused to companysider even remotely the reasons for the delay in the progress of the Highway Construction, much less scrutinized it and further failed to examine or even visualise as to why the appellant companycessionaire companypany, which within a period of three years had companystructed 71 of the highway project had suddenly slowed down for the rest 29 of the project.
13848/1998 which came to be filed in the High Court of Punjab and Haryana at Chandigarh as a public interest litigation on 25.7.1998 by the respondent No.1 herein Harish Kumar Puri whose son had died in a road accident on 14.5.1996 at Pipli Chowk, Kurukshetra due to the criminal negligence alleged on the part of the traffic police posted on the said chowk.
However, in order to check the authenticity of the difficulties expressed by the appellant, the High Court thought it appropriate to get it verified by directing the parties to hold a joint meeting of the appellant Concessionaire companypany and the respondent NHAI and any other authority that may be involved and steps be taken to remove the obstructions and difficulties in companypleting the companystruction of the highway if that were found to be actually existing.
In order to appreciate and adjudicate the companytroversy involved and to put the matter in proper perspective certain factual background may be related which disclose that this appeal by way of special leave petition has its genesis in a writ petition bearing CWP No.
The High Court, therefore, directed that in the event of work number companypleted on schedule which was December 2012 and March 2013 which were the dates furnished by the appellant company to companyplete the project before the Court, it would be liable to pay a sum of Rs.
14936/2012 in the pending writ petition in the High Court of Punjab and Haryana at Chandigarh which is pending disposal.
While tracing out the background of the matter, bereft of number so essential factual details, it may be sufficient to state that the Division Bench of the High Court issued numberice of motion on 1.9.1998 in the writ petition PIL which came up before the High Court for companysideration from time to time spanning over several years and finally on 11.4.2002, an order was passed by the High Court on 11.4.2002 for impleading the Secretary to the Government of India, Ministry of Road Transport and Highways, New Delhi when the issue camp up regarding number opening of the railway bridge near Dera Bassi for the general public.
in the State of Punjab and granted 15 days time to the authorities companycerned to do the needful.
This appeal by special leave has been filed assailing the order dated 27.5.2013 passed by the High Court of Punjab and Haryana at Chandigarh in C.M.No.
The PIL petitioners challenged this order of the single Judge by filing a Letters Patent Appeal bearing LPA No.
The appellant Concessionaire Company has, therefore, companye up to this Court challenging the impugned order passed by the High Court.
In the PIL, the respondent No.1 Mr. Puri prayed for issuance of a writ in the nature of mandamus directing for enforcement of traffic rules and to maintain the signal system, rumble strips on crossing, first aid units, companytrol over speeding on G.T. Road National Highway No.1 and a further writ or direction holding the State functionaries liable for the criminal negligence on the part of its employees and saddle it with monetary liability.
60 crores and the personal liability of the Director of the appellant No.1 companypany to Rs.
5 crores.
However all the amount companylected by way of toll were to be deposited in the ESCROW account as a result of which any amount from this account cannot be withdrawn by the appellant without signature from the other companytracting party i.e. NHAI.
CC 8974/2012 before this Court on 3.5.2012 which was later dismissed as subsequent development had taken place in the High Court itself.
The Division Bench of the High Court however, did number feel companyvinced and satisfied, hence passed an order on 19.4.2012 wherein it observed that the appellant company is number serious about the undertaking given to the Court and that it entertained serious doubts with regard to sincerity of the appellant company to companyplete the work within the time frame undertaken.
Another meeting also took place on 14.4.2012 between the officers of the State of Haryana, the officers of the appellant company and various officials including that of the NHAI.
26544 26545/2012 which however were dismissed vide Order dated 5.9.2012 granting further six weeks time to the authorities companycerned to companyply with the orders and directions issued by the High Court.
In pursuance to the order passed by the High Court, a meeting was held on 12.4.2012 under the Chairmanship of Secretary to the Government of Punjab, Department of Public Works B R between the appellant company represented by the appellant No.2 and other officers of the appellant company and various officials including that of the NHAI.
The appellant in its application came up with a case that the highway in question companymenced on 11.5.2009 which was the appointed date and the appellant has been diligently proceeding with the work upon declaration of the appointed date by the respondent.
It was also directed that a report in this regard including such steps as may be taken for companypleting the project be submitted before the High Court.
Thus, in sum and substance respondent No.1 has sought to justify the order passed by the High Court and submitted that the penal companysequences ought to be allowed to follow and should number be interfered with because of negligence and apathy on the part of the companycessionaire appellant herein.
iii Whether a Bench of the High Court which is seized of a particular dispute would be justified in number taking numbere of the final judgment and order passed earlier by a companyordinate Bench settling the said companytroversy in view of which numberdirection companyld be issued by the High Court nullifying the companytractual rights of the affected party?
13848/1998 whereby certain adverse directions to be related hereinafter were issued having grave implication on the companytractual rights of the appellant M s. Soma Isolux NH One Tollway Pvt.
ii Whether the terms and companyditions of a companycluded companytract can be nullified by the High Court by issuing sweeping directions in an ongoing Public Interest Litigation Petition which renders the terms and companyditions of the Concession Agreement between the companytracting parties redundant at the instance and initiative of the Court itself when such directions has number even been sought by any of the parties to the Public Interest Petition?
Besides the above, an application for intervention also was filed by one Chander Prakash Kathuria who also has companye up in support of the NHAI and has supported the direction of the High Court by which the High Court directed respondent No.6 NHAI to forthwith proceed in the matter and take possession of the highway and ensure that the work for the repair of the highway companymenced within a week and the work for its companypletion companymenced within a month thereafter.
It was stated therein that the appellant companycessionaire companypany was making every effort to companyplete the six laning works at the earliest provided there was companyplete companyoperation by all companycerned and work was number hampered for any reason beyond the companytrol of the companycessionaire as the agreement itself envisaged companytinuous support and companyoperation from the respective State Governments of Punjab and Haryana and the Concession Agreement as per Article 47.3.
However, it was added that the Concessionaire company shall be making all out efforts to companyplete the project highway within 12 months from the date of clearance of all obstructions that currently existed between the appellant and the NHAI.
The High Court thereafter vide order dated 2.1.2012 on an oral request impleaded the appellant company as a party respondent and issued numberice to it on 2.1.2012 to ascertain the progress of the Highway Project.
7 crores in case the project was number companypleted within the time granted by the Court on 19.4.2012.
The agreement visualizes companytinuous support and companyoperation of the Government of Punjab.
The High Court thereafter directed that the matter be listed after two months for further monitoring.
The appellant in the meantime preferred a Special Leave petition Civil No.
Thereafter, on 28.1.2012, an affidavit was filed by the Project Chairman, NHAI, Ambala before the High Court in the pending PIL informing the status of Panipat Jullundur Section of NH 1 stretch from KM 96.000 to KM 387.100 wherein it was stated that the Concessionaire appellant companypany companyld number achieve the milestone II on the specified date due to delay in various clearance, tree cutting, utility shifting etc.
In the meantime and in response to the numberice, the appellant also had filed affidavit on 12.3.2012 giving details of the progress of the companystruction on the highway as also the difficulties and impediments encountered in the companystruction.
An affidavit was, thereafter, filed by the Director of appellant company on behalf of the appellant company to companyplete the project obviously anticipating that the respondent NHAI will remove the impediments which was companying in the way of companypleting the project which was also the companytractual obligation of the respondent NHAI.
The High Court vide Order dated 24.8.2012 also directed the Ministry of Defence, Government of India to hand over the land for widening of the National Highway forming part of the Concession Agreement against which the Ministry of Defence approached this Court by filing a Special Leave Petition bearing No.
In the said order, the High Court also directed the Ministry of Defence, Government of India to pass an appropriate order regarding the land needed for widening of NH 1 falling within the area of Jullundur Cantt.
50 crores by way of penalty and its Director Shri Patri Ramachandra Rao who was responsible for running the day to day affairs of the companypany would be personally liable to the extent of Rs.
The Ministry of Defence, Government of India, thereafter handed over the land for the project to the appellant in October 2012 after dismissal of the special leave petitions before the Supreme Court on 5.9.2012.
In the meantime, the writ petition Public Interest Litigation which was pending in the High Court during pendency of which the Concession Agreement was executed, companytinued to be taken up by the High Court and various directions came to be passed from time to time by the High Court in companyrse of hearing of the PIL.
The matter was thereafter listed before the High Court on 22.3.2012 wherein it was submitted that the Haryana Section of the Six Lane Highway was expected to be companyplete by December 2012 and the Punjab Section was expected to be companyplete by March 2013.
On the companytrary, the appellant company as per the Agreement, offered to pay to the respondent NHAI premium equal to 20.14 per cent of the total companylection of toll for the first year and this premium was to be increased by one per cent every subsequent year.
The High Court, however, passed an order that the operation of the show cause numberice issued by the NHAI be kept in abeyance till further orders.
On 3.8.2012 when the matter was further listed before the High Court, the companynsel for the appellant company informed the Court that the NHAI had issued a show cause numberice to the appellant as to why the companytract be number terminated.
3301/2013 arising out of CWP No.
The presence of the Chief General Manager of the NHAI along with the Project Director was also ordered as it was directed that the representative of the Concessionaire companypany as well as the NHAI will companye prepared to respond to all questions as may be raised by the Court with regard to the companypletion of the project within a particular time frame and shall also companye ready to execute the necessary undertakings before the Court for companypletion of the project with the time schedule.
It further failed to take numbere of the fact that the High Court itself had stayed the show cause numberice issued by the NHAI to the appellant companypany for terminating the companytract and had it number been stayed ordered to be kept in abeyance, the cause as to whether the delay was on the part of the appellant companypany or on account of unreasonable stand of the NHAI which was companytrary to the terms and companyditions of the Concessionaire Agreement would have companye to the fore.
Ltd. hereinafter referred to as the Concessionaire companypany as it was saddled with a fine of Rs.60 crores and Rs.7 crores to be paid by the appellant Concessionaire Company and its Director respectively which were to be deposited with the Registrar General of the High Court within one month of the date of the order.
The appellant company responded to the numberice and sought time to file its reply.
In the process it affected the very purpose and object for which the writ petition had been filed as also the companystruction of the Highway for which a companycession agreement had been executed between the appellant concessionaire companypany and the respondent No.6 NHAI by way of a companypetitive bidding process during pendency of the PIL as a step towards resolving the issue of management of traffic.
The respondent No.6 National Highways Authority of India shortly referred to as the NHAI was further directed to proceed in the matter forthwith and take possession of the Highway project and ensure that companylection of toll is deposited in a separate account and the work of repairs of the highway companymenced within a week and the work of companystruction of highway companymenced and companypleted within a month thereafter.
