THE GAUHATI HIGH COURT AT GUWAHATI v. THE STATE OF AP

Heard Mr. A. Kashyap, learned counsel for the petitioners. Also heard Ms. G. Ete, learned Addl. Senior Govt. Advocate, for the State respondent Nos.2 & 3 and Mr. G. Tarak, learned standing counsel for the respondent Nos.1, 4, 5 & 6.

Four petitioners have approached this Court by filing the present petition, under Article 226 of the Constitution of India, challenging the e-procurement Notice, dated 22.06.2020, issued by the Executive Engineer/PIU, Pakke-Kessang for construction/up- gradation of roads from 27.00 KM of Sede to Pijiriang, under the Pradhan Mantri Gram Sadak Yojana –II (herein after PMGSY-II, Up gradation) and maintenance thereof, for five years, along with BID documents available from 23.06.2020, and to direct the respondent authorities to pay their land compensation as per the provisions of Right to Fair Compensation and Transparency as per the Land Acquisition, Rehabilitation and Resettlement Act, 2013 and to pass appropriate order or directions, as the Court deem fit and proper to grant adequate relief to the petitioners, for the ends of justice.

The background facts, leading to filing of the present petition are adumbrated here in below:- Writ Petition (C) No.198 (AP)/2020 “The Government of Arunachal Pradesh had sent a proposal to the Ministry of Road Transport and Highways (MoRTH) for laying out a highway from Seppa to Itanagar via Sede, Jollang, Nangyo, Chamte, Talin, Dwola-Tallong, Veo, Taroyar, Pijiriang and Pakro Villages. Accordingly, survey was carried out and by a notification, dated

18.12.2011, the land of the petitioners were to be acquired for the construction of the Two Lane National Highway along the old BRO Road, from Sede to Pakro i.e. from point 127 to 158 (point 27 to point 58 as per starting point used in impugned NIT). The land of the petitioners lie along the BRO Road from Sede to Pakro section point 127 to 158, which was covered by the notification dated 18.12.2011 and accordingly, they have, along with the affected villagers, received compensation. However, finally, an alternative alignment was adapted from Sede to Pakro and the villages of the petitioners, which lie along the old BRO Road, were excluded. Being aggrieved by the said act of the respondents, some affected people approached the High Court by filing the PIL No.101/2013, alleging inter alia that the new shortened alignment of the National Highway from Sede to Pakro, is in violation of the plan, proposed by the Government of Arunachal Pradesh and the petitioners of the PIL sought a direction from the Court to set aside the changed alignment between Sede to Pakro and to construction of the National Highway on Sede-Pakro segment, as per the existing BRO Road alignment.

Writ Petition (C) No.198 (AP)/2020 It is the pleaded case of the petitioners that prior to sending its proposal to the MoRTH, steps were taken by the State Government to acquire the land needed for upgrading the existing BRO Road on Sede-Pakro segment and the compensation amount was assessed and deposited with the authorities for disbursement to the land owners. In the PIL, the respondent authorities filed an affidavit admitting that survey was conducted by the Government to upgrade the BRO Road on Sede-Pakro segment to make it a two-lane road and also to pass through the villages as stated by the petitioners and in pursuant to survey, lands have been acquired and compensation has been assessed and deposited with the authorities for disbursement to the land owners. However, it is stated that the MoRTH did not find the proposal of the State Government a feasible one. It is also the case of the petitioners that by the order dated 18.09.2014, passed in the PIL No.101/2013, this Court casts responsibility on the State Government to upgrade and complete the alignment along BRO Road of 31 KM, in 2 years to National Highway Two Lane specification.

However, the State Government had failed to comply with the order dated 18.09.2014, passed in the PIL No.101/2013. Rather, the impugned e-procurement Notice dated 22.06.2020, issued by the Executive Engineer/PIU, Rural Works Division, Seijosa, for up gradation under the PMGSY -II Road of the existing road from Sede to Pijiriang, which is a segment of BRO Road from Sede to Pakro. Writ Petition (C) No.198 (AP)/2020 According to the petitioners, the NIT and PMGSY website reporting on the project have wide discrepancies, which indicates either a careless attitude or an ulterior motive, in preparation of the NIT and the project proposal, and this is in direct contravention of the authority’s own stand, in view of order dated 27.12.2017, and also the order of Division bench of this Court in the PIL No. 101 of

2013.”

Being aggrieved, the petitioners have instituted the present petition seeking the relief(s) as aforesaid.

The respondent Nos.1, 4, 5 & 6, have submitted an affidavit-in- opposition denying the assertions, so made in the writ petition and contended that the allegations to be false. It is stated that the e- procurement Notice dated 22.06.2020, issued by the respondent No.6, was duly approved by the competent authority. It is stated by the respondents that the petitioners cannot challenge the action of the respondent No.6 on the garb of judicial order dated 18.09.2014, passed in the PIL No.101/2013, as the deponents have not been made a party to the said case. Moreover, there is always a difference in the width of the PMGSY Road and other projects. It is to be noted here that no affidavit-in-opposition has been filed on behalf of the respondent Nos.2 & 3.

In reply to the affidavit-in-opposition, filed by the respondent Nos.1, 4, 5 & 6, the petitioners have filed their rejoinder, wherein the petitioners have reiterated that the respondent No.1 represents the Writ Petition (C) No.198 (AP)/2020 State Government and the respondent Nos.4, 5 & 6 are instrumental agencies and officials under the respondent No.1 and cannot deny their responsibility, being the instrumental agencies, under the respondent No.1, who had sent a proposal to the MoRTH, for laying out highway from Seppa to Itanagar, via Sede, Jollang, Nangyo, Chamte, Talin, Dwola-Tallong, Veo, Taroyar, Pijiriang and Pakro Villages. Accordingly, survey was carried out and as per the notification dated 18.12.2011, the land of the petitioners were to be acquired for construction of a Two Lane National Highway along the BRO Road from Sedde to Pakro. However, the final alignment was adopted, excluding the villages of the petitioners on old BRO road. Being aggrieved by the said act of the respondent authorities, the petitioners filed the PIL No.101/2013, praying for setting aside the changed alignment between Sedde to Pakro and to direct the respondent authorities to construct the Two Lane National Highway on Sedde-Pakro segment, as per the existing BRO Road alignment.

It is further contended by the petitioners in their reply to the affidavit-in-opposition, filed by the respondent Nos.1, 4, 5 & 6, that the respondent authorities have admitted by filing affidavit in the PIL No.101/2013, that the survey was conducted by the Government to upgrade the BRO Road from Sedde - Pakro segment to make it two lane road and also pass through the villages, as stated by the petitioners and this Court, vide order dated 18.09.2014, in the PIL No.101/2013, directed the Government of Arunachal Pradesh to take up the project and construct the road as per its proposal sent to the MoRTH, within a period of two years and also directed to complete Writ Petition (C) No.198 (AP)/2020 the said road project, simultaneously with the Sedde-Pakro approved road.

Mr. A. Kashyap, the learned counsel for the petitioners, submits that vide Notification No. LM-465/2011, dated 18.12.2011, the Government of Arunachal Pradesh, i.e. the respondent No. 1 had acquired land of East Kameng Seppa for construction of a road from Sepa to Itanagar via Sede, Jollang, Nangyo, Chamte, Talin, Dwola- Tallong, Veo, Taroyar, Pijiriang and Pakro villages and the aforesaid project was undertaken as per direction of this court in PIL No. 101/2013, dated 18.09.2014. But, in contravention of judgment of this court in the aforesaid PIL and also ignoring the guidelines issued in PMGSY-I, the respondent authorities have issued an E-Procurement Notice, dated 22.06.2022, for upgradation of existing segment of road from Sede to Pijiriang, which is a segment of BRO Road from Sede to Pakro and the said E-Procurement Notice suffered from many contradictions in respect of the value of the contract, width of the road and it also contravene the guideline of PMGSY-II 2013 and the e-procurement Notice was issued without preparation of any DPR and therefore, Mr.

Per-contra, Mr. G. Tarak, learned counsel for the State respondent Nos. 3 -7, submits that the petition become infructuous as the road has already been constructed and though this court has directed vide order dated 18.09.2014, to construct a 2 Lane National Highway, yet, alternative road was constructed in view of the report of the local MLA of RWD department. Mr. Tarak further submits that a sum of Rs. 9 Crore was sanctioned and that the RWD officials were not a party to the PIL and therefore, they were not aware of the order so passed by this court in the said PIL. Mr. Tarak also submits that the petitioners have not challenged the NIT and they have not participated in the said process and that they were not proper Writ Petition (C) No.198 (AP)/2020 representative of the villagers and there are two departments involved in the aforesaid project and it is not cleared from the petition against which department they have raised their grievance and therefore, it is contended to dismiss the petition.

On the other hand, Ms. G. Ete, the learned Additional Senior Government Advocate, had advanced two-fold argument. Firstly, Ms. Ete submits that the road has already been constructed under the PMGSY. Secondly, Ms. Ete submits that the petitioners have not made PWD Highway and the Deputy Commissioner, East Kameng District as party in this petition. Ms. Ete further submits that the Chief Engineer Highway ought to have been made a party. Ms. Ete also submits that on this twin ground, this petition is bound to fail and the petition becomes infructuous and therefore, it is contended to dismiss the petition.

In view of the assertions made in the pleadings of the parties and also in view of the submissions of learned Advocates of the concerned parties, the issues, that have arisen for consideration of this court is formulated as under:- (i) Whether the final alignment of road between Sedde to Pakro adopted by the respondent authorities, excluding the villages of the petitioners along old BRO road, contravenes the directions of this court in the PIL No.101/2013 ? (ii) Whether the E-Procurement Notice, dated 22.06.2022, issued by the respondent authorities for up gradation of Writ Petition (C) No.198 (AP)/2020 existing segment of Sede to Pijiriang road which is a segment of BRO Road from Sede to Pakro, suffered from self contradictions in respect of the value of the contract, width of the road and it was also issued in contravention of the PMGSY-II 2013 guideline and also prepared without any DPR and on such count the said Notice is liable to be set aside ? (iii) Whether the road has already been constructed by the respondent authorities and on such count this petition becomes infructuous ?

Having heard the submissions of learned counsel for all the parties, I have carefully gone through the petition and the documents placed on the record. Also perused the case laws referred by Mr. Kashyap, the learned counsel for the petitioner.

Since Contempt petition No. 58/2020, has already been instituted by the petitioners with regard to the alleged violation of the direction of this court in PIL No. 101/2013, and indisputably, the same is pending for adjudication, the issue No. I, so formulated herein above, to the considered opinion of this court, requires no adjudication, as the relief sought in the said petition will definitely be dealt with by this court.

It is the categorical stand of Mr. G. Tarak the learned standing counsel for the respondent Nos.1, 4, 5 & 6 and also of Ms. G. Ete, learned Addl. Senior Govt. Advocate, for the State respondent Nos.2 Writ Petition (C) No.198 (AP)/2020 & 3, that the petition becomes infructuous, as the construction of the road is already completed. The petitioners have not disputed this stand of the respondents. If construction of the road has already been completed, then the question of interfering with the E- procurement Notice, to the considered opinion of this court, at this stage, does not arise. Thus, there is substance in the submission Mr. G. Tarak and Ms. G. Ete, the learned counsel for the state respondents.

It is also the categorical stand of the respondents No. 1,4,5 and 6 that the e-procurement Notice dated 22.06.2020, issued by the respondent No.6, was duly approved by the competent authority. Moreover, it appears that the petitioners cannot challenge the action of the respondent No.6 in view of the order of this court, dated

18.09.2014, in the PIL No.101/2013, as they were not party to the said case. Moreover, there is always a difference in the width of the PMGSY Road and other projects. It also appears from the contentions of the respondents that they have not willfully violated any of the judicial order, but, acted as per instruction of Hon’ble MLA vide No. U.O. No. BR/PK-09/2018, dated 05.07.2018 (Annexure - I of the Affidavit in opposition) and the same was duly certified by the Deputy Commissioner on 17.05.2019.

It also appears the E-Procurement Notice, dated

22.06.2020, was issued by the respondent authority in consonance with PMGSY norms, on being requested by the local MLA. It is to be noted here that Annexure-I at page No.6 of the Affidavit in opposition, read as under:- Writ Petition (C) No.198 (AP)/2020 ARUNACHAL PRADESH The road from Side to Pijeraing could not be included in the alignment of Trans Arunachal High Way due to obligatory or other reason by NHAI. As such, that portion of road is in deplorable condition and not traffic worthy. The local people are facing a lot of difficulty. Therefore, this road may be taken up under PMGSY and included in PMGSY-II package for top priority. SD/ 12th Pakke Kessang (ST), A/C Arunachal Pradesh CE, RWD, PMGSY, Govt. of A.P., Itanagar U.O. NO.BR/PK-09/2018, Date 05.07.2018 Copy to:

EE(RWD) Pakke-Kessang Division for information.

A cursory perusal of the note of the local MLA, reveals that he had issued the same in the public interest. While the NHAI could not include the road from Side to Pijeraing, in the alignment of Trans Arunachal High Way, due to obligatory or other reason and that portion of road was in deplorable condition, and not traffic worthy, for which the local people were facing lots of difficulties, he had issued the note asking the Chief Engineer RWD, PMGSY, Govt. of A.P., Itanagar to take up the road under PMGSY and include the same in PMGSY-II package for top priority. Thus, any arbitrariness or Writ Petition (C) No.198 (AP)/2020 mala-fides seems to be absent in the action of the authority, which is required to be established by the parties so as to invoke the writ jurisdiction, under Article 226 of the Constitution of India, as held by Hon’ble Supreme Court in plethora of cases.

While dealing with judicial review of contractual matters in the case of N.G. Projects Ltd. v. Vinod Kumar Jain, reported in