Soman Chellappan and P. M. Basheer v. National Highways Authority of India and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 ``` ``` WP(C) NO. 12324 OF 2023 ``` ## **`PETITIONERS:`** - **`1 SOMAN CHELLAPPAN, AGED 42 YEARS, S/O. CHELLAPPAN, PRESIDENT, ADIMALI BLOCK PANCHAYAT, ADIMALI. RESIDING AT PARAKKAL HOUSE, 14TH MILE, VALARA P.O, ADIMALI, IDUKKI DISTRICT., PIN – 686 561.`** - **`2 P.M BASHEER, S/O. MAKKAR, AGED 45 YEARS, PRESIDENT, KOTHAMANGALAM BLOCK PANCHAYAT, KOTHAMANGALAM, RESIDING AT POOVATHUMCHUVATTIL HOUSE, NEELIKUZHI, KOTHAMANGALAM, ERNAKULAM., PIN – 686 671.`** ``` BY ADVS. ROSHEN.D.ALEXANDER TINA ALEX THOMAS HARIMOHAN KOCHURANI JAMES ``` ## **`RESPONDENTS:`** - **`1 NATIONAL HIGHWAYS AUTHORITY OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, G 5 & 6, SECTOR 10, DWARAKA, NEW DELHI. REPRESENTED BY ITS CHAIRMAN., PIN – 110 075.`** - **`2 CHAIRMAN, NATIONAL HIGHWAYS AUTHORITY OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, G 5 & 6, SECTOR 10, DWARAKA, NEW DELHI, PIN – 110 075.`** **W.P.(C)No.12324 of 2023** **2** - **`3 MEMBER - TECHNICAL, NATIONAL HIGHWAYS AUTHORITY OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, G 5&6, SECTOR 10, DWARAKA, NEW DELHI, PIN–110 075.`** - **`4 GENERAL MANAGER, NATIONAL HIGHWAYS AUTHORITY OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, G 5&6, SECTOR 10, DWARAKA, NEW DELHI, PIN-110 075.`** - **`5 REGIONAL OFFICER, NATIONAL HIGHWAYS AUTHORITY OF INDIA, THIRUVANANTHAPURAM, KERALA, PIN – 695 024.`** - **`6 EKK INFRASTRUCTURE LIMITED, SECOND FLOOR, MUNICIPAL BUILDING, A.M ROAD, PERUMBAVOOR, ERNAKULAM, KERALA, INDIA, PIN-683 542.`** - **`7 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS (MoRTH) TRANSPORT BHAWAN, 1, PARLIAMENT STREET NEW DELHI., PIN – 110 001.`** - **`8 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT (NH WING), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001.`** ``` BY ADVS. B.G.BIDAN CHANDRAN, SC, NHAI ADV.DEEPU THANKAN ``` ## **`OTHER PRESENT:`** ``` DSGI S.MANU; CGC SUVIN R. MENON; ADV. NAMITHA K.M. FOR R6; SR.GP. T.K.VIPINDAS ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.12324 of 2023** **3** ## **JUDGMENT** Dated this the 27[th] day of July 2023 ## **A.J. Desai, C.J** By way of the present petition in the nature of public interest, the grievance raised by the Presidents of two Block Panchayats is about the non-commencement of the widening/development of existing NH-85 from Kochi to Munnar stretch even after the successful completion of bidding and tendering and hence, they have prayed for the following reliefs: - “i. To issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing Respondents 1 to 8 to complete the process of tendering and commence the work of the Widening/Development of existing NH-85 from Km 0.000 to Km 124.636 Section of NH-85 to 2L/2L + PS Section (KochiMunnar stretch) forthwith and without any delay. - ii. To issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing Respondents 1 to 8 to complete the work of the Widening/Development of existing NH-85 from Km 0.000 to Km 124.636 Section of NH-85 to 2L/2L + PS Section (Kochi – Munnar stretch) in a time bound manner. - iii. To issue a writ in the nature of a declaration declaring that the **W.P.(C)No.12324 of 2023** **4** delay in commencing the work of the Widening/Development of existing NH-85 from Km 0.000 to Km 124.636 Section of NH-85 to 2L/2L + PS Section (Kochi – Munnar stretch) is in violation of the fundamental rights guaranteed under Articles 19(1)(d) and 21 of the Constitution of India to the citizens and persons who are using the road and also who are residing on both sides of the road. - iv. To monitor the progress of the work of Widening/Development of existing NH-85 from Km 0.000 to Km 124.636 Section of NH85 to 2L/2L + PS Section (Kochi – Munnar stretch) and issue orders in the nature of continuous mandamus or any other writ, order or direction that this Hon’ble Court deems fit. - v. To issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing Respondents 1, 2 and 7 to consider Exts. P7 and P8 representations in a time bound manner and commence the work of the Widening/Development of existing NH-85 from Km 0.000 to Km 124.636 Section of NH-85 to 2L/2L + PS Section (Kochi – Munnar stretch) forthwith.” 2. In response to the notice issued by this court, counter affidavit dated 01.07.2023 has been filed on behalf of respondent Nos. 1 to 5 by the Project Director, National Highways Authority of India (NHAI), PIU-Cochin-II. 3. It is the case of the NHAI that the delay had occurred due to certain litigations with respect to the tender. However, now the **W.P.(C)No.12324 of 2023** **5** Authority is going to start the widening/development of the road and, therefore, nothing survives in this matter. 4. We have heard learned Advocates appearing for the respective parties. 5. We have gone through the counter affidavit filed by the NHAI wherein it has categorically stated the details of the litigation with regard to the tender process and thereafter, the steps undertaken by the Authority. Paragraphs 5 to 9 of the counter affidavit, which are relevant, are reproduced hereunder: “5. In the meantime, one of the disqualified bidder M/S JSP Projects Pvt Ltd filed WP(C)No.16493/22 before the Hon’ble High Court of Delhi. Hence, it is most respectfully submitted that the signing of agreement between Government and lowest bidder has been delayed due to the litigation. There are no wilful latches on the part of the answering respondents. WP(C)No.16493 of 2022 is pending before the Honourable High Court of Delhi. As per order dated 1.12.2022 in WP(C)No.16493 of 2022, the Hon’ble Delhi High Court ordered that any decision taken pursuant to the office memorandum dated 4[th] November 2022 and 15[th] November 2022 shall be subject to the final decision in the writ petition. A true copy of the Order dated 1.12.2022 in WP(C)No.16493 of 2022 is produced herewith and marked as Exhibit R1(a). **W.P.(C)No.12324 of 2023** **6** As per Order dated 13.04.2023 in WP(C)No.16493 of 2022, the Hon’ble High Court of Delhi ordered that there is no impediment in the NHAI going ahead and awarding contract relating to the highways/infrastructure to third party. However, the Hon’ble High Court made clear that such award shall be subject to the outcome of the writ petition. A true copy of the Order dated 13.04.2023 in WP(C)No.16493 of 2022 is produced herewith and marked as Exhibit R1(b). The agreement between the Hon’ble President of India through the Ministry of Road Transport and Highways and M/S EKK Infrastructure Limited were signed on 25.05.2023 for the development and management of widening/development of existing NH 85 to 2L/2L+PS Section in the State of Kerala on EPC mode. (Engineering, Procurement, Construction) with the terms and conditions to be set forth in an agreement to be entered into, adding a special clause that the agreement signed between the parties will be subject to the outcome of Writ Petition pending before the Hon’ble High Court of Delhi. 6. It is most respectfully submitted that the National Highway Authority of India has taken necessary steps to start the maintenance and development work of the NH-85. Since 13/01/2023, the respondents started the Joint Tree Enumeration for identifying the trees standing within the ROW of NH-85, which are to be removed for the project. The trees were identified and the list prepared were handed over to the Assistant Conservator of Forest, Social forestry department, Edappally, Ernakulam and the matter is under **W.P.(C)No.12324 of 2023** **7** the consideration of the forest department. 7. Simultaneously, notification under Section 3A of the National Highway Act, appointing the Competent Authority for Land Acquisition (CALA) was published on 17[th] January 2023. Special Deputy Collector (LA), NH, Ernakulam is the CALA for the part of Ernakulam District and the Special Tahsildar, LA, NH, Idukki, Kanjikuzhy has been appointed as CALA for the part of Idukki District. 8. Further, notification under Section 3A of the National Highway Act, for the acquisition of certain lands for the construction of additional Neriyamangalam Bridge and Toll plaza at Kavalangad in Kuttamangalam village of Kothamangalam Taluk, were issued on 17[th] April 2023 as per Notification No. 1760(E). It is expected that the proposed additional Neriyamangalam Bridge will smoothen the traffic congestions at Neriyamangalam. The Survey work of the Right of Way (ROW) of NH-85 is also going on for the shoulder to shoulder development of existing NH-85 from Km 0.000 to Km 124.636 Section of NH-85 to 2L/2L + PS Section Kochi – Munnar stretch. 9. It is most respectfully submitted that the answering respondents are taking earnest steps to complete the widening and development work of NH-85, as early as possible. With the permission of the Hon’ble High Court of Delhi, agreement has been signed to ensure the commencement of maintenance and development work of the NH-85 as early as possible and thereby to protect the rights and interest of the common people. Accordingly, the **W.P.(C)No.12324 of 2023** **8** NH-85 will be handed over to the concessioner as per the agreement for the maintenance and development within the time stipulated as per the agreement. It is most respectfully submitted that there is no lapse or purposeful delay in starting the work.” As the NHAI intends to proceed with the widening of the road and has categorically stated the same by filing a counter affidavit, we dispose of this writ petition based on the assurance. It is expected that the respondent Authority shall expedite the work. **Sd/-** **A.J. Desai Chief Justice** **Sd/-** **V.G. Arun Judge** **vpv** **W.P.(C)No.12324 of 2023** **9** ## **`APPENDIX OF WP(C) 12324/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 TRUE COPY OF THE NOTICE INVITING BID DTD. 30.07.2022. ``` ``` Exhibit P2 TRUE COPY OF THE REQUEST FOR PROPOSAL (RFP) FOR THE WIDENING/DEVELOPMENT OF EXISTING NH-85 FROM KM 0.000 TO KM 124.636 SECTION OF NH-85 TO 2L/2L+PS SECTION IN THE STATE OF KERALA ON ENGINEERING, PROCUREMENT & CONSTRUCTION (EPC) MODE PUBLISHED DURING JULY 2022. ``` ``` Exhibit P3 TRUE COPY OF THE PROCEDURE FOR E-TENDERING PUBLISHED BY NHAI. ``` - **`Exhibit P4 TRUE COPY OF NEWS PUBLISHED IN THE INDIAN EXPRESS DAILY ON 02.02.2022.`** ``` Exhibit P5 TRUE COPY OF THE LoA ISSUED TO THE 6TH RESPONDENT BY THE 4TH RESPONDENT HEREIN ON BEHALF OF THE 1ST RESPONDENT BEARING NO. NHAI/KL/KOCHI-MUNNAR/EC/2022/PART-2 (E- 168982) DTD. 19.12.2022. ``` ``` Exhibit P6 TRUE COPY OF THE JUDGMENT DTD. 22.02.2023 IN W.P.(C) NO. 8140/2022. ``` ``` Exhibit P7 TRUE COPY OF THE REPRESENTATION BEARING NO. 1042/DEL/2023 DTD. 24.02.2023 SUBMITTED TO THE 2ND RESPONDENT. ``` ``` Exhibit P8 TRUE COPY OF THE REPRESENTATION BEARING NO. 1044/DEL/2023 DTD. 17.03.2023 SUBMITTED TO THE HON'BLE MINISTER OF ROAD TRANSPORT AND HIGHWAYS. ``` **W.P.(C)No.12324 of 2023** **10** ## **`RESPONDENT EXHIBITS`** ``` Exhibit R2(a) True copy of order dated 01.12.2022 in WP(C)No. 16493 of 2023 of the Honourable High Court of Delhi ``` ``` Exhibit R1(b) True copy of order dated 13.04.2022 in WP(C)No. 16493 of 2023 of the Honourable High Court of Delhi ```