DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. AAM AADMI LOKMANCH
LAWS(SC)-2020-7-4
SUPREME COURT OF INDIA
Decided on July 14,2020

Director General (Road Development) National Highways Authority Of India Appellant
VERSUS
Aam Aadmi Lokmanch Respondents


Referred Judgements :-

KILGOLLAN VS. WILLIAM COOKE AND CO. LTD [REFERRED TO]
GRIFFITHS VS. LIVERPOOL CORPORATION [REFERRED TO]
ENTICK VS. CARRINGTON [REFERRED TO]
GORRIS VS. SCOTT [REFERRED TO]
HAYDON VS. KENT COUNTY COUNCIL [REFERRED TO]
MERSEY DOCKS AND HARBOUR BOARD V GIBBS [REFERRED TO]
BROWN VS. HARRISON [REFERRED TO]
BURNSIDE VS. EMERSON [REFERRED TO]
DORSET YACHT CO LTD VS. HOME OFFICE [REFERRED TO]
EAST SUFFOLK RIVERS CATCHMENT BOARD VS. KENT [REFERRED TO]
GEDDIS VS. PROPRIETORS OF BANN RESERVOIR [REFERRED TO]
MACKIE VS. DUMBARTONSHIRE COUNTY COUNCIL [REFERRED TO]
QUINN VS. SCOTT [REFERRED TO]
SHEPPARD VS. BOROUGH OF GLOSSOP [REFERRED TO]
BARRETT VS. ENFIELD LONDON BOROUGH COUNCIL [REFERRED TO]
GORRINGE VS. CALDERDALE METROPOLITAN BOROUGH COUNCIL [REFERRED TO]
JITENDRA SINGH VS. MINISTRY OF ENVIRONMENT AND ORS [REFERRED TO]
ONGC V. ASSN. OF NATURAL GAS CONSUMING INDUSTRIES OF GUJARAT [REFERRED TO]
PHELPS VS. HILLINGDON LONDON BOROUGH COUNCIL [REFERRED TO]
ROBINSON VS. CHIEF CONSTABLE OF WEST YORKSHIRE POLICE [REFERRED TO]
SECURITIES EXCHANGE COMMISSION VS. CHENERY CORP. [REFERRED TO]
SMITH VS. LITTLEWOODS ORGANISATION LTD [REFERRED TO]
MANTRI TECHNOZE PVT. LTD. VS. FORWARD FOUNDATION [REFERRED TO]
MITCHELL VS. GLASGOW CITY COUNCIL [REFERRED TO]
STOVIN V WISE [REFERRED TO]
YETKIN VS. MAHMOOD [REFERRED TO]
MUNICIPAL CORPORATION OF DELHI MUNICIPAL CORPORATION OF DELHI MUNICIPAL CORPORATION OF DELHI VS. SUBHAGWANTI [REFERRED TO]
L HIRDAY NARAIN VS. INCOME TAX OFFICER BAREILLY [REFERRED TO]
STATE OF TAMIL NADU VS. HIND STONE [REFERRED TO]
UNION OF INDIA VS. CYNAMIDE INDIA LIMITED [REFERRED TO]
SITARAM SUGAR COMPANY LIMITED U P STATE SUGAR CORPORATION LIMITED VS. UNION OF INDIA [REFERRED TO]
H S S K NIYAMI VS. UNION OF INDIA [REFERRED TO]
SUBHASH KUMAR VS. STATE OF BIHAR [REFERRED TO]
RAJKOT MUNICIPAL CORPORATION VS. MANJULBEN JAYANTILAL NAKUM [REFERRED TO]
MUNICIPAL CORPORATION OF DELHI VS. SUSHILA DEVI [REFERRED TO]
HINCH LAL TIWARI VS. KAMALA DEVI [REFERRED TO]
CANARA BANK VS. DEBASIS DAS [REFERRED TO]
M C MEHTA VS. UNION OF INDIA [REFERRED TO]
PUNE MUNICIPAL CORPORATION VS. PROMOTERS AND BUILDERS ASSOCIATION [REFERRED TO]
T VIJYALAKSHMI VS. TOWN PLANNING MEMBER [REFERRED TO]
KISHORI LAL VS. CHAIRMAN EMPLOYEES STATE INSURANCE CORPORATION [REFERRED TO]
PTC INDIA LTD VS. CENTRAL ELECTRICITY REGULATORY COMMISSION [REFERRED TO]
LAFARGE UMIAM MINING PVT LTD VS. UNION OF INDIA [REFERRED TO]
MIG CRICKET CLUB VS. ABHINAV SAHAKAR EDUCATION SOCIETY [REFERRED TO]
MACHAVARAPU SRINIVASA RAO VS. VIJAYAWADA URBAN DEVELOPMENT AUTHORITY [REFERRED TO]
DEEPAK KUMAR VS. STATE OF HARYANA [REFERRED TO]
VADODARA MUNICIPAL CORPORATION VS. PURSHOTTAM V. MURJANI [REFERRED TO]
CELLULAR OPERATORS ASSOCIATION OF INDIA VS. TELECOM REGULATORY AUTHORITY OF INDIA [REFERRED TO]
HANUMAN LAXMAN AROSKAR VS. UNION OF INDIA [REFERRED TO]
STATE OF MEGHALAYA VS. ALL DIMASA STUDENTS UNION [REFERRED TO]



Cited Judgements :-

S.MAHESWARI VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2021-10-40] [REFERRED TO]


JUDGEMENT

S.RAVINDRA BHAT, J. - (1.)Leave granted in SLP (C) Nos. 28178/2018, 1706/2019, Diary No. 19018 of 2018 and 1632 of 2019. With consent of counsel for the parties, they were tagged with the companion civil appeals and heard finally.
(2.)On 06 June, 2013, when Ms. Vishakha Wadekar, was driving her car with her young daughter, Sanskruti Wadekar she had no inkling that danger lurked round the corner of the highway; over-mining at the height of 75 x 30 ft, in Gut No. 112, resulted in the destruction of a small hill by the side of the national highway. The resultant debris and a part of the hill collapsed and slid down to the road, claiming the lives of Ms. Vishakha and her daughter. The directions made by the Pune bench of the National Green Tribunal, on an application by a registered organization, (the respondent in the appeal, the Aam Aadmi Lokmanch, hereafter "Lokmanch") are the subject matter of the appeals (CA 6932/2015 by NHAI; CA 5971/2019; CA 11803/2018 and CA 6862/2018) before this court. The other appeals by special leave question the judgments and orders of the Bombay High Court, which upheld the regulations framed pursuant to the order of the NGT. The High Court negatived the challenge to those regulations in the writ petitions presented before it.
(3.)The facts in brief are that the National Highways Authority of India (hereafter "NHAI") had entered into an agreement with M/s P.S. Toll Road (Pvt.) Ltd., a unit/undertaking of Reliance Infrastructure Ltd. (which is arrayed as the ninth respondent; PS Toll Road (Pvt.) Ltd. hereafter referred to as "the concessionaire") on 10.03.2010 for the maintenance and operation of the Pune-Satara section of National Highway No. 4, to an extent of 140 kms. The scope of the agreement included construction of the project (i.e. the highway stretch) as well as its operation and maintenance for a period of 24 years. The agreement included stipulations mandating safety to the highway users (clause 18.1.1). The NHAI was duty bound to appoint experienced safety consultants for carrying out safety audits of Project Highways (clause 18.1.2), the expenditure for which was to be borne by the concessionaire (clause 18.1.3). An elaborate highway monitoring mechanism was also contemplated by the agreement (clause 19.1) through which by the seventh of each month, an independent engineer was to furnish a report after due inspection (of the operation and maintenance arrangements), containing defects or deficiencies (clauses 19.2). Additionally, the independent engineer was to require the concessionaire to carry out specified tests for confirming that the highway was operated in accordance with applicable standards (clause 19.3). Other stipulations included, inter alia, requirements that the concessionaire had to carry out remedial measures (Clause 19.4.1) within a period of 15 days after receipt of the report of the independent engineer. The concessionaire was put to terms in that if relevant repairs or remedial measures were not undertaken, the NHAI could recover damages in terms of Clause 17.8. [
In terms of Clause 19.4.2, the measure of damages which NHAI could recover was calculable in terms of each days delay in complying with the remedial measures suggested by the engineer, based on the "higher (a) 0.5% of the Average Daily Fee and (b) 0.1% of the cost of such repair or repair estimated by the Independent Engineer" The same clause (17.8.1) stated that:

"Notwithstanding anything contained in this agreement, should the actual traffic exceed the design capacity during any year or part thereof and the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this agreement and the Authority shall be entitled from such date to recover damages, to be calculated and paid for each day of the delay until the breach is cured, at the higher of (a) 5% (five percent) of Average daily fee and 1% (one percent) of the cost of such repair or rectification as estimated by the Independent Engineer, for the balance period of the concession. The recovery of such damages shall be without prejudice to the rights of the Authority under this agreement, including the right of termination thereof."

Another obligation cast on the concessionaire was to send a periodic report of various occurrences, including "unusual occurrences on the Project Highway" such as death or injury to any person (clause 19.6), any obstruction, or "flooding of Project Highway".
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