Disposed

Smt. Alka W/O Shri Manoj Kakade and Ors. v. the National Highway Authority of India Thr. Its Chairman and Ors.

Bombay HC17 Apr 2013PIL/84/2012

Case brief

AI extract

What is this about?

This petition challenged the International Competitive Bidding process and toll collection orders. The Court dismissed the PIL as disposed due to prior acceptance of consent terms by the Apex Court for earlier grievances, and the current grievances were considered infeasible to examine.

What the court decided

AI extract

Smt. Alka W/O Shri Manoj Kakade and Ors. Vs… — Public Procurement and Tenders | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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PUBLIC INTEREST LITIGATION NO.84 OF 2012 Smt. Alka w/o Shri Manoj Kakade and others vs. The National Highway Authority of India and others

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Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders

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Shri Ambareesh Joshi, counsel for Petitioners. Shri S.K.Mishra, ASGI for R-1 & 6. Shri Kathane, counsel for R-4. Shri S.P.Palshikar, counsel for R-5. Shri S.K.Chari, counsel for R-1 to 3 & 6.

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CORAM : B.P. DHARMADHIKARI &

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A.B. CHAUDHARI, JJ. DATED : 17th APRIL, 2013 .

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Heard.

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Perused orders of the Honourable Apex Court. Prayers in present PIL, are as under :

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“A] Call for the record and proceedings available with the respondents 1 to 3 of the entire process of International Competitive Bidding (ICB) undertaken by the respondent 1 since April, 2008 starting from “Request of Qualification” (RFQ) to “Request for Proposal” (RFP) in October, 2008 for the work of “4laning of Madhya Pradesh-Maharashtra Border – Nagpur Section of NH-7 from Km 652.00 (new Km 653.225) to Km

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.....2/-

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729.000 including construction of Kamptee-Kanhan and Nagpur Bypass in the State of Maharashtra under NHDP Phase – II on Design, Build, Finance, Operate and Transfer (DBFOT) Basis” to award of contract of to the respondent 4 vide Concession Agreement dated 5.10.2009 including record and proceedings of pre-bid meetings and clarifications to pre-bid queries issued by the respondent 1 during period interregnum;

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B] Call for the record and proceedings of the respondent 1 to 3 and 6 leading to the issuance of the Notification dated 22.5.2012 bearing No.S.O.1153(E) (ANNEXURE-E) issued by the respondent 6 and upon examining the same, quash and set aside the same as incorrect, erroneous, illegal, arbitrary and violative of Article 14 of the Constitution of India and vilative of statutory provisions of the National Highways Fees (Determination of Rates and Collection) Rules, 2008 and Concession Agreement dated 5.10.2009.

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C] Call for record and proceedings from the respondents 1 to 3 and 5 pertaining to grant of Provisional Certificate to the respondent 4 and issuance of letter dated 11.6.2012 (copy not available with petitioners) by the respondent 5 granting Provisional Commercial Operation Date (PCOD) to the respondent 4 and upon examining the legality or otherwise of the same as incorrect, erroneous, illegal, arbitrary and violative of Article 14 of the

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.....3/-

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Constitution of India and violative of statutory provisions of the National Highways Fees (Determination of Rate and Collection) Rules, 2008 and Concession Agreement dated 5.10.2009.

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D] Upon examining the record and proceedings pertaining to Concession Agreement dated 5.10.2009, Notification dated 22.5.2012 (ANNEXURE-E) and issuance of Provisional Certificate and Provisional Commercial Operation Date to the respondent 4 referred to supra, be pleased to hold and declare that the respondent 4 is not entitled to collect toll fees from the users at the First Integrated Toll Plaza at Km. 703.700 on NH-7 and the Check Toll Plazas constructed by the respondent 4 on Kamptee-Kanhan Bypass and Nagpur Bypass as he has not completed the mandatory requirement of 75% work under the Concession Agreement dated 5.10.2009.

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E] Be further pleased to hold the respondent 4 is not entitled to collect toll fees at the First Integrated Toll Plaza at Km. 703.700 on NH-7 at the same rate from users of stretch of road of NH-7 from Km. 704.000 to Km. 689.000 unless and until he completes the construction of 4-laned road upto Maharashtra / Madhya Pradesh Khawasa Border at Km. 652.000 at the same rate as shall be charged from users of the Kamptee-Kanhan Bypass and Nagpur Bypass (Outer Ring Road) as the same is violative of Article 14 of

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.....4/-

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the Constitution of India as it treats similarly to distinct, separate, dissimilar and un-identical sets of users.

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F] during the pendency of the present petition by an appropriate ad-interim order or direction, restrain the respondents 1 to 4 from charging and / or collecting and / or levying any toll, fee or charge whatsoever from any vehicle or commuter, at the First Integrated Toll Plaza at Km. 703.700 on NH-7 and the Check Toll Plazas constructed by the respondent 4 on Kamptee-Kanhan Bypass and Nagpur Bypass as he has not completed the mandatory requirement of 75% work under the Concession Agreement dated 5.10.2009 during the present petition being subjudice before this Hon’ble Court and be further pleased to confirm the ad-interim order passed after hearing the parties.

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G] during the pendency of the present petition by an appropriate ad-interim order or direction direct the respondent 4 to keep a record of (1) number of vehicles including their type and registration nos. which have crossed the First Integrated Toll Plaza and the Check Toll Plaza at Kamptee-Kanhan Bypass and at Nagpur Bypass and (2) amounts collected by it from such vehicles and to furnish the same on record of this Hon’ble Court on monthly basis.

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H] pass any other order or grant any other relief which this Hon’ble Court

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.....5/-

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may be pleased to find just, reasonable, fair proper and expedient in the facts and circumstances of the matter and considering the benefit, welfare and best interests of the general public at large and in the interest of justice.”

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Earlier, PIL No.12 of 2012, Writ Petition No.5292 of 2011 and Writ Petition No.2802 of 2012, were decided by this Court on 17.7.2002. The said judgment was assailed before the Honourable Apex Court in Civil Appeal Nos. 1107-1109 of 2013 and in it initially, on 11.9.2012, an interim arrangement was worked out with consent of the parties. The said arrangement was then accepted as final arrangement again, with consent of the parties, by the Apex Court, on 11.2.2013, when Civil Appeals have been disposed of.

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Grievance in present PIL No.84 of 2012 is in relation to causes, which are prior to acceptance of said consent terms and passing of orders by the Honourable Apex Court.

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Though, we have called upon petitioners to explain why the grievances were not made in earlier PIL when matters were disposed of, there

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.....6/-

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is no satisfactory explanation. The PIL appears to have been filed on 1.8.2012.

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It is apparent that taking cognizance of alleged earlier causes by this Court, in this situation, is not feasible.

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Hence, we dispose of the Public Interest Litigation. No costs.

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JUDGE JUDGE

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!! BRW !!

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...../-

Smt. Alka W/O Shri Manoj Kakade and Ors. v. the National Highway Authority of India Thr. Its Chairman and Ors.

Case brief

What is this about?

What the court decided

Smt. Alka W/O Shri Manoj Kakade and Ors. v. the National Highway Authority of India Thr. Its Chairman and Ors.

Case brief

What is this about?

What the court decided

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