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2015 DIGILAW 877 (HP)

Court on its own motion v. State of H. P.

2015-07-13

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : MANSOOR AHMAD MIR, J. 1. We have been passing orders in the instant petition right from 3rd December, 2014 till 6th July, 2015. 2. Vide order dated 3rd December, 2014, this Court had passed certain directions, which are contained in paragraphs 3, 20 and 21 thereof. In order to gauge the progress and ensure that the work in question is executed efficiently and properly, we constituted a Committee comprising of the Chief Secretary, Government of Himachal Pradesh, the Principal Secretary (PW), Government of Himachal Pradesh and the Engineerin- Chief, HPPWD, and the Committee was directed to file separate status reports on each and every hearing. Besides, all the respondents to the lis were also directed to file their respective status reports/replies. 3. In compliance to the said order, respondents No.1 and 2, {the Principal Secretary (PW) and the Engineer-in-Chief, HPPWD, respectively}, filed affidavit dated 15th December, 2014, in which it was stated that the entire work has been divided into two parts and both the parts were further divided into three milestones each. The first milestone of each part was stated to be achieved by the Contractor by June, 2015, the second milestone of both the parts was to be achieved by December, 2015 and the third milestone, being the last one, was to be achieved by June, 2016. 4. Vide order, dated 23rd March, 2015, the petition was adjourned for four weeks to show the results, on the request of the learned Advocate General. In addition, following order was also passed: “………….It is made clear that the first milestone is to be achieved within the time frame already fixed and any dereliction/violation made by any person, including the contractor, including breach of the contract, shall amount to contempt and all the parties and the Officers shall be dealt with accordingly.” 5. In compliance to the above order, respondents No.1 and 2 filed the status report dated 25th April, 2015, in which it was stated that the first milestone would be achieved within the time frame, subject to weather conditions. In compliance to the above order, respondents No.1 and 2 filed the status report dated 25th April, 2015, in which it was stated that the first milestone would be achieved within the time frame, subject to weather conditions. After perusing the status reports, this Court found that the work of the Contractor was not satisfactory and therefore, a 2-Member Committee was constituted, the description of which has been given in paragraph 13 of the order dated 2nd May, 2015 and the Chief Secretary was directed to provide all facilities to the Committee in terms of paragraph 14 of the said order. 6. On 20th June, 2015, the learned counsel for respondent No.3-Contractor made a statement that the milestone would be completed within the time frame and sought time to file affidavit to that effect during the course of that day, which opportunity was granted to him. 7. Thereafter, respondent No.3-Contractor filed the affidavit, dated 20th June, 2015, stating therein that the said respondent was not in a position to achieve the milestones within the time frame, taking totally a contrary stand to the statement made by the learned counsel representing respondent No.3-Contractor, as recorded in the order, dated 20th June, 2015. Respondent No.3 in the said affidavit also suggested measures as to how he would complete the work. It is apt to reproduce the relevant portion of the affidavit hereunder: “………….The respondent No.3 respectfully submits that in the given circumstances it is in a position to commit before this Hon’ble Court as under: (I) Package-I (a) The hotmix plant for Package I being installed near place known as Chailla will be commissioned in all respects on or before 25th of June, 2015. (b) The obligation to initiate the Black Topping of entire prescribed portion of first milestone in Package-I will be started by respondent No.3 on 27th June, 2015, and will be completed thereafter as soon as possible. The respondent No.3 undertakes that except for the reasons beyond its control, the work of above said component will be carried continuously without any break. It is pertinent to submit that in ideal conditions, with the machinery respondent No.3 has, the progress of 7 metres wide Black Topping of road at the rate of 1 km. in length per day is achievable and the respondent No.3 shall make every endeavour to achieve the said progress. It is pertinent to submit that in ideal conditions, with the machinery respondent No.3 has, the progress of 7 metres wide Black Topping of road at the rate of 1 km. in length per day is achievable and the respondent No.3 shall make every endeavour to achieve the said progress. (c) The respondent No.3 further submits and undertakes to complete the 100% excavation/earthwork of the remaining portion of Package I i.e. from Kms.20.00 to 48.00 Kms, by 15th November, 2015. (II) Package-II (a) The hotmix plant for Package II being installed near place known as Patsari will be commissioned in all respects on or before 25th June, 2015. (b) The obligation to initiate the Black Topping of entire prescribed portion of first milestone in Package-II will be started by respondent No.3 on 27th June, 2015, and will be completed thereafter as soon as possible. The respondent No.3 undertakes that except for the reasons beyond its control, the work of above said component will be carried continuously without any break. It is pertinent to submit that in ideal conditions, with the machinery respondent No.3 has, the progress of 7 meters wide Black Topping of road at the rate of 1 km. in length per day is achievable and the respondent No.3 shall make every endeavour to achieve the said progress. (c) The respondent No.3 further submits and undertakes to complete the 100% excavation/earthwork of the remaining portion of Package-II i.e. from Kms. 48.00 to 68.00 Kms, by 15th July, 2015.” 8. The 2-Member Committee appointed by this Court also submitted its report pointing out the exact position existing on the spot, a reference to which has been made by the learned Amicus Curiae in the response, dated 1st July, 2015, filed to the affidavits of the respondents. It is apt to reproduce paragraph (e) of the said response hereunder: “ (e) Reports by the Committee appointed by this Hon’ble Court Two reports have been submitted by the Ld. Committee appointed by this Hon’ble Court. These reports have very specifically given a very clear picture of the “on spot” position. According to the reports, there is no project like position existing on the spot. The work is behind the schedule. It is unlikely that first milestone will be achieved by the respondents. Committee appointed by this Hon’ble Court. These reports have very specifically given a very clear picture of the “on spot” position. According to the reports, there is no project like position existing on the spot. The work is behind the schedule. It is unlikely that first milestone will be achieved by the respondents. Reports have pointed out that all 14.50+14.04 Crores =28.54 crores have been spent by the State from which the contractor has not even completed work even in double digit of the total work leave aside the targeted milestone. There are various deficiencies in the working of the contractor which have been pointed out by the Committee in its elaborate reports. Some of the salient features of the reports are:- Lack of micro level monitoring. Indifference of the managers of the contractors responsible for micro level. Machinery deployed not owned by the Contractor but sub standard owned by others who are not for obvious reasons will be indifferent to the execution of work in time. Whatever machinery is deployed is not being utilized to its capacity. Crusher/main component in such like project is working at less than 3 hours per day. Not adequate supply of aggregated to it. Hot Mix plant despite repeated commitments still not commissioned. Bridges and retaining walls not constructed. Resident Engineer not appointed. Dumping is being done on the road side and not on approved dumping sites. Updated and revised programmes are required to be submitted. Necessity of water sprinklers on the road. Unattended big pot holes and depressions requiring immediate repairs. Resident engineers require to be appointed. Apparent that the contractor is facing big financial problems.” 9. This Court, after examining the affidavits/status reports, vide order dated 24th June, 2015, directed the respondents, the learned Amicus Curiae and the 2-Members Committee to file fresh status reports/responses, which stand filed. It is apt to reproduce paragraphs 1, 3, 4 and 5 of the said order hereunder: “Respondent No.3-Contractor has filed the status report demonstrating therein as to how he is going to complete the project in question in terms of the contract. Learned Advocate General prayed that before passing any order, he may be permitted to file the response to the said report after seeking instructions from the Government. Ms.Jyotsna Rewal Dua, learned Amicus Curiae, also sought time to file response to the said report and make suggestions. ………. …………….. ………………………. Learned Advocate General prayed that before passing any order, he may be permitted to file the response to the said report after seeking instructions from the Government. Ms.Jyotsna Rewal Dua, learned Amicus Curiae, also sought time to file response to the said report and make suggestions. ………. …………….. ………………………. The learned Amicus Curiae pointed out that respondent No.4-Consultant has stated in the affidavit that he has made suggestion to the employer that the Contractor be asked to open an escrow account so that the money released to the Contractor is used for the purpose of construction of the road only and that the labourers etc. are paid regularly. It was also pointed out by respondent No.4-Consultant in the affidavit that respondent No.3-Contractor be asked to submit fresh working programme detailing item-wise work schedule viz. a viz. remaining stipulated period. We have also gone through the report submitted by the Committee constituted by this Court and we find that the report is an eye-opener for the State Authorities as well as for the other agencies connected with the execution of the work in question. The Members of the Committee to visit the site before the next date of hearing and file fresh status report in terms of the orders already made and also to file response to the affidavit filed by the Contractor.” 10. On 24th June, 2014, the counsel appearing for respondent No.3-Contractor informed the Court that original counsel Mr.Satyen Vaidya has fallen ill seriously and is bed ridden. On 1st July, 2015, when the writ petition was again listed, Mr.Bimla Gupta, Advocate, appeared for respondent No.3-Contractor and respondent No.3-Contractor was asked to file an affidavit that he would not claim any addition/alteration of the terms of the contract or resort to arbitration proceedings to lay a claim for additional amount. Respondent No.3-Contractor was also directed to undertake that he would achieve the milestones in terms of the affidavit, dated 20th June, 2015, at his own risk and responsibility. To do the needful, Mr.Bimal Gupta, Advocate, appearing for respondent No.3, sought time, which was granted. 11. Respondent No.3-Contractor was also directed to undertake that he would achieve the milestones in terms of the affidavit, dated 20th June, 2015, at his own risk and responsibility. To do the needful, Mr.Bimal Gupta, Advocate, appearing for respondent No.3, sought time, which was granted. 11. On having been pointed out by the learned Amicus Curiae that the 3- Member Committee, comprising of the Chief Secretary, the Principal Secretary (PW) and the Engineer-in-Chief, HPPWD, has filed affidavits contrary to the factual position on the spot, the said officers were directed to show cause why they be not proceeded in terms of the provisions of the Contempt of Courts Act. The Managing Director and the Director, of respondent No.3, were also directed to remain present in person before the Court. 12. The matter was thereafter listed on 6th July, 2015, on which date Mr.N.K. Sood, Senior Advocate appeared for respondent No.3-Contractor, who sought adjournment, which was reluctantly granted. The matter, subsequently, was taken up on 8th July, 2015, when respondent No.3 filed an application, alongwith affidavit, which was taken on record for consideration at appropriate stage. Mr.N.K. Sood, Senior Advocate, sought adjournment to comply with the directions passed by this court vide order dated 1st July, 2015, which was granted and the matter was fixed for 9th July, 2015. 13. On 9th July, 2015, the learned counsel for the parties were heard at length. The learned Senior Counsel appearing for respondent No.3-Contractor tried to seek indulgence of the Court to the effect that the time frame, as fixed, in terms of the contract for the completion of the work in question, be extended till June, 2017, instead of June, 2016. However, it was made clear to all the parties that alteration/modification in the terms of the contract is the domain of the parties who have executed the contract. This Court has taken the cognizance of the matter only in the interest of the public and to prevent any loss to the state exchequer. 14. During the course of hearing, Mr.Narender Chauhan, Principal Secretary (PW), to the Government of H.P. and Managing Director of the HPRIDC, was also heard at length, who stated that there is no need to extend the date for the completion of the work in question and it cannot be extended. 14. During the course of hearing, Mr.Narender Chauhan, Principal Secretary (PW), to the Government of H.P. and Managing Director of the HPRIDC, was also heard at length, who stated that there is no need to extend the date for the completion of the work in question and it cannot be extended. He also stated that the contract was awarded to the Contractor after examining his experience in the field and that the Contractor has the will to complete the work. He further stated that they have the best team of engineers to execute the work and that they are committed to complete the work in question within the stipulated time frame. 15. The learned Senior Counsel sought permission to place on record the undertaking of respondent No.3 in terms of the orders passed on 1st July, 2015 (supra). However, after going through the undertaking in the open Court, it was found that the undertaking was not in tune with the orders passed, and therefore, respondent No.3 was directed to execute the undertaking strictly in terms of the order passed. After amending the undertaking, the same was placed on record by respondent No.3, which still is not in accordance with the directions passed by this Court. No doubt, respondent No.3, in paragraph 3, of the undertaking has mentioned that the said respondent will not claim any benefit of the orders passed or which may be passed by this Court in future from time to time in relation to the contractual obligations/rights between the contracting parties under the agreement in question, however, we find that the undertaking is not strictly in terms of the order of this Court, constraining this Court to clarify and pass the following order. 16. The contractor cannot and shall not take any benefit from the directions made by this Court from time to time enabling him to seek additional amount. Respondent No.3-Contractor shall not be entitled to claim that the Court has condoned the delay. It is also made clear that the orders passed by this Court shall not cause any prejudice to the rights, interests and liabilities accrued to the parties from the contract and the parties shall be bound by the terms and conditions contained in the contract. The Contractor is directed to take all measures and complete the work expeditiously strictly in terms of the contract. 17. The Contractor is directed to take all measures and complete the work expeditiously strictly in terms of the contract. 17. At the cost of repetition, we once again observe that addition/alteration in the conditions of the contract is the domain of the parties to the contract. 18. We also direct that the 2-Members Committee constituted by this Court, vide order dated 2nd May, 2015, shall supersede the other Committees constituted by this Court. However, it is made clear that the Authority (ies)/Officer (s), who is/are competent or authorized to monitor the progress of the work, are at liberty to do so. 19. The 2-Member Committee shall furnish its report fortnightly, as directed earlier. The Committee shall also see that the money released by the State Government to the Contractor is used only for the purpose for which it is released and not for any other purpose. The Committee is further directed to point out whether the Contractor is working with zeal and in terms of the contract and any defiance made by the Contractor shall be brought to the notice of the Court. It is also observed that in case the 2-Member Committee appointed by this Court requires any help from any Officer of the State for the monitoring of the work in question, they are at liberty to approach any Authority of the State, including the Chief Secretary, and the Authorities of the State are bound to provide assistance to the Committee, so that the road is made functional within the time frame. 20. The Chief Secretary is, once again, commanded to comply with the directions contained in paragraph 14 of the order, dated 2nd May, 2015. 21. Mr.Narender Chauhan, Principal Secretary (PW), to the Government of H.P., being the Managing Director of the HPRIDC, shall be responsible to get the work executed in terms of the statement made by him before the Court. In case he feels that the Contractor is not fulfilling his contractual obligations in terms of the contract, it is his duty to point out the same to the Court well in time, not the way he has done by filing the affidavit at a belated stage. 22. In case he feels that the Contractor is not fulfilling his contractual obligations in terms of the contract, it is his duty to point out the same to the Court well in time, not the way he has done by filing the affidavit at a belated stage. 22. The Chief Secretary, the Principal Secretary (PW) and the Engineer-in-Chief filed the affidavits and made this Court to believe that the Contractor would achieve the first milestone within the time frame already fixed, which was contrary to the position existing on the spot, for which reason, on 1st July, 2015, this Court directed these officers to show cause why they be not proceeded in terms of the Contempt of Courts Act. They have filed replies to the show cause notice, which are not satisfactory. Therefore, the said Officers as also Shri C.S. Sethi, Managing Director, and Capt. Rajbir Singh, Director, of respondent No.3, are directed to show cause why Rule be not framed against them for filing affidavits, which are, prima facie, contrary to the exact position prevailing on the spot, and for the prima facie breach/violation of the orders passed by this Court from time to time. 23. The Managing Director and the Director of respondent No.3, The Chief Secretary, the Principal Secretary (PW) and the Engineer-in-Chief, HPPWD shall also remain present in person before this Court on the next date of hearing. 24. Before parting with, we place on record a word of gratitude for the strenuous efforts and the valuable assistance provided by Mr.Shrawan Dogra, learned Advocate General, Ms.Jyotsna Rewal Dua, Senior Advocate appearing as Amicus Curiae, Mr.R.K. Sharma, Senior Advocate and Mr.Devender Jaita, Advocate. 25. The Registry is directed to furnish a copy of this order to all the Advocates appearing in the instant writ petition and also to all the concerned officers forthwith. List on 17th August, 2015.