Smt. Yojana Dangi vs Union Of India
2022 Latest Caselaw 13005 Raj

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                D.B. Civil Writ Petition No. 15024/2021

Smt. Yojana Dangi W/o Sh. Birdhi Chand, Aged About 52 Years,
R/o-    5/6,    Marudhar        Vihar,      Khatipura,           Jaipur     -   302012
(Rajasthan).
Pan No. AIGPD1602B,
Mobile No. 9511537714
                                                                          ----Petitioner
                                      Versus
1.      Union Of India, Through Its Secretary, Department Of
        Home Affairs, North Block, New Delhi.
2.      Secretary, Ministry Of Road Transport And Highways,
        Transport Bhawan, 1, Parliament Street, New Delhi-
        110001.
3.      National      Highway        Authority        Of    India,        Through    Its
        Chairman, G 5 And 6, Sector 10, Dwarka, New Delhi-
        110075.
4.      State    Of    Rajasthan,         Through          The     Chief     Secretary,
        Government Secretariat, Jaipur (Rajasthan).
5.      M/s Larsen & Toubro BTP Toll Way through Its Managing
        Director, L&T Campus, TCTS Building, 1St Floor, Mount
        Poonamallee Road, Manapakkam, Chennai-600089.
6.      The Project Director, National Highways Authority Of
        India, 198, Umaid Heritage, Ratanada, Jodhpur-342011
        (Rajasthan).
                                                                    ----Respondents


For Petitioner(s)           :     Mr. J.P. Bhardwaj.
                                  Mr. O.P. Choudhary.
For Respondent(s)           :     Mr. Sudhir Gupta, Sr. Advocate with
                                  Mr. Mohit Singhvi, Mr. Umang Gupta &
                                  Ms. Shweta Chouhan.
                                  Mr. Mukesh Rajpurohit, Dy. S.G.
                                  Mr. Vinay Kothari.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
           HON'BLE MR. JUSTICE KULDEEP MATHUR

                                JUDGMENT


                       (Downloaded on 04/11/2022 at 08:56:04 PM)
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Judgment pronounced on                 :::            04/11/2022
Judgment reserved on                   :::            20/10/2022



BY THE COURT : (PER HON'BLE MEHTA, J.)

1. Heard learned counsel representing the parties and perused

the material available on record.

2. The petitioner has filed the instant writ petition under Article

226 of the Constitution of India styling it to be Public Interest

Litigation with the following prayers:

"i) Issue a writ, order or direction of like nature to direct CBI or SIT Investigation/ enquiry in poor quality of construction, issuance of provisional work completion certificate in 2015 and toll collection without completion of project of Pali- Pindwara Section NH-14 till date;

ii) Direct recovery of compensation from the concessionaire of Rs.14.91 crore which was imposed on dt.09.09.2016 by Project Director, National Highways Authority of India Limited (NHAI) along with interest with penal action against the responsible officers;

iii) Direct recovery of compensation and penalty from the concessionaire from October 2016 to July 2021 for non completion of project as per Article 14.4 of Contract Agreement. Also the officers responsible for not operating the Article 14.4 of Contract Agreement and for acceptance of sub-standard work should also be held responsible.

iv) Direct recovery of collected sum of Rs.1913.59 crore as a toll collection from Pali-Pindwara Section only by December 2020 without completion of the project;

v) Direct payment of compensation to all sufferers of accidents of the nature of fatal, serious and minor injuries."

3. A perusal of the pleadings of the writ petition and the

documents annexed thereto, would indicate that the petitioner is

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aggrieved of alleged irregularities and the so-called substandard

construction of the National Highway No.14 "Beawar- Pali-

Pindwara" Section the work whereof was executed by the

respondent No.5 "M/s Larsen & Toubro BTP Toll Way" (hereinafter

referred to as 'the Concessionaire'). The petitioner has placed on

record various documents pertaining to the construction activities

of the said Highway and relies upon certain communications/

notices regarding shortcomings/defects pointed out by the officers

of the National Highway Authority of India (hereinafter referred to

as 'the NHAI') and the order of penalty imposed upon the

Concessionaire. In this regard, the petitioner has also relied upon

the Unstarred Question No.3024 dated 22.03.2021 put up by Shri

Neeraj Dangi, Member of Parliament before the Rajya Sabha.

4. Learned counsel Shri Bhardwaj and Shri Choudhary

representing the petitioner, vehemently and fervently contended

that as the Concessionaire has failed to perform its obligations

under the Concession Agreement and since the Highway in

question has not been completed within the stipulated time

period, the authorities of the NHAI were not justified in issuing the

provisional completion certificate to the Concessionaire. It is

further contended that road has not been constructed as per the

specified standards but despite that, the supervising officers of the

NHAI are ignoring these blatant shortcomings. Hundreds of lives

have been lost on the Highway because of the poor quality of

construction. The tenure of the Concession Agreement is till 2034

and the Concessionaire has already collected huge amount to the

tune of nearly 1900 crore rupees by way of toll even though

construction of the road is incomplete and the completion

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certificate has not been issued. They thus urged that a mandatory

immediate direction deserves to be issued to restrain the

Concessionaire from collecting toll on the road in question and

also to direct recovery of compensation and penalty from the

Concessionaire in terms of Article 14 of the Concession

Agreement. Further prayer is made to direct the Concessionaire

to pay compensation to all those who have lost their near and

dear ones as a consequence of the accidents which have taken

place on the road in question during the corresponding period.

5. Reply to the writ petition has been filed on behalf of the

respondent No.5 Concessionaire wherein, the allegations levelled

by the petitioner in the writ petition are emphatically denied.

Bonafides of the petitioner in filing the writ petition are

questioned. It has been alleged that the writ petition has been

filed with malicious, unfounded and untenable allegations and with

an ulterior motive to cause harm to the respondent

Concessionaire.

Reply on behalf of the NHAI has been filed by learned

counsel Shri Vinay Kothari wherein, copy of the Gazette

Notification dated 28.12.2011 has been annexed under the

authority whereof, the Concessionaire was permitted to collect toll.

It is submitted that the notification is not under challenge in the

instant writ petition and hence, the same is liable to be dismissed

on this ground alone.

6. Learned Senior Counsel Shri Sudhir Gupta assisted by Shri

Mohit Singhvi, Advocate appearing on behalf of the

Concessionaire, vehemently and fervently contended that the

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allegations set out in the writ petition are malafide, malicious and

the writ petition has been filed for oblique purposes. Attention of

the Court was drawn to Article 15 of the Concession Agreement by

virtue whereof, on the issuance of completion certificate or the

provisional certificate, the commercial services on the road in

question including demand and collection of fee, is permissible.

Shri Gupta further submitted that regarding the provisional

certificate, check list of shortcomings and the penalty demanded

from the Concessionaire, the matter is pending before the

competent authority in terms of the Concession Agreement and

thus, the adjudication of this issue is not permissible in this writ

petition. Shri Gupta place reliance on the Supreme Court

Judgment in the case of Soma Isolux NH One Tollway Private

Limited vs. Harish Kumar Puri & Ors reported in (2014)6

SCC 75 and urged that interference in the contractual matter/

rights of the parties is impermissible while exercising PIL

jurisdiction.

On these grounds, Shri Gupta, learned Senior Counsel

representing the respondent Concessionaire, Shri Vinay Kothari,

Advocate representing the respondent NHAI and Shri Mukesh

Rajpurohit, Dy. Solicitor General of India, urged that apart from

the fact that the writ petition does not involve any question of

public importance, the same has been filed with malafide and

oblique motives and thus, it should be dismissed with heavy cost.

7. We have given our thoughtful consideration to the

submissions at bar and, have gone through the material available

on record.

(6 of 8) [CW-15024/2021]

8. Primarily, three fold submissions were advanced by learned

counsel representing the petitioner beseeching the Court to

exercise its PIL jurisdiction i.e. (i) the faulty construction of the

Highway, (ii) the operation thereof in the alleged breach of terms

of the contract and (ii) award of compensation for the fatalities

which have taken place on the Highway in question allegedly

because of its faulty design.

At the outset, we may note here that the construction of the

Highway in question is being undertaken under a Concession

Agreement dated 22.06.2011 the terms whereof are binding on

the parties. Hence, this Court, while exercising its powers of

judicial review, would be loathe to enter into the issues arising

from purely contractual obligations of the parties. It may be noted

here that aspect regarding imposition of penalty by the NHAI upon

the concessionaire owing to non-adherence to the time schedule

and non-compliance of the check list, the matter is admittedly

subjudice before the competent authority which is authorised to

examine such issues as per the agreement itself. Thus, venturing

into these issues in a purported exercise of PIL jurisdiction, would

amount to premature and unwarranted interference in the

jurisdiction of a competent authority and hence, it is apparent that

the said prayer made in the writ petition is untenable and

unworthy of acceptance.

9. Regarding the allegation that the concessionaire has not

executed the work of road in question in terms of the Concession

Agreement, suffice it to say that the Concession Agreement itself,

stipulates the consequences of non-adherence to the terms and

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conditions thereof and all actions, if so required, would have to be

taken in light thereof.

Needless to say that whenever, the NHAI proposes to take

any action against the concessionaire on the basis of certain sets

of facts and allegations which are disputed, a resolution

mechanism is provided in the Concession Agreement itself and

hence, there would be no justification whatsoever for this Court to

delve into the issues arising from the breach of terms and

conditions of the contract in the purported exercise of writ

jurisdiction. Thus, this prayer made in the writ petition cannot be

acceded to. In this regard, the ratio of the judgment rendered in

the case of Soma Isolux NH One Tollway Private Limited

(supra) clearly defines the peripheries in which such jurisdiction

can be exercised.

In the facts and circumstances noted above, we are of the

firm opinion that the present one is not a case warranting

invocation of the jurisdiction of Public Interest Litigation so as to

interfere in the contractual issues between the parties.

10. Regarding the contention that many people have lost their

lives on account of accidents which have taken place on the

subject Highway because of its faulty design, the allegation is

totally fallacious as it is not supported by any material whatsoever.

Though the statistics placed on record by the petitioner do indicate

that some accidents have taken place on the Highway in question

but the petitioner has not been able to substantiate the allegation

that these accidents have occurred because of faulty design of the

Highway. In order to prove this allegation and to satisfy the Court

regarding the faulty design, the petitioner would have to present

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unimpeachable scientific evidence. However, apart from a bald

allegation, nothing has been placed on record which can even

barely support the allegation so made.

It is evident that the petitioner's brother Shri Neeraj Dangi,

Member of Parliament tried to raise these very issues through an

unstarred question in the Rajya Sabha proceedings but,

apparently, the issue so raised did not fetch the desired result

and hence, it can be presumed that the complaint made in this

regard is devoid of any substance. It is also apparent that when

the attempted interference in the construction of the road failed

before the Parliament, this writ petition was got filed through the

petitioner.

11. As a consequence of the above discussion, we find no reason

to exercise the extraordinary writ jurisdiction of this Court so as to

accede to the prayers made by the petitioner in this writ petition

which is dismissed as being devoid of merit.

12. No order as to costs.

                                   (KULDEEP MATHUR),J                                      (SANDEEP MEHTA),J


                                    70-Tikam Daiya/-









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