Sunil Ambwani, J. - (1.) D.B. Civil Writ Petition No. 7296/2014.
(2.) WE have heard learned counsel appearing for the parties and all the stakeholders including the Central Government, NHAI, State of Rajasthan, IDBI, lead Banker and the Members of the Consortium Banks. By this writ petition, the petitioner has prayed for the following reliefs: - - "(i) to issue an appropriate writ of mandamus, order or direction in the nature of mandamus to direct Respondent No. 1 & 2 to take immediate action to terminate and suspend the concession granted to Respondent No. 5; (ii) to issue an appropriate writ, order or direction in the nature of mandamus to restrain the Respondent No. 5 from collecting toll tax; (iii) to pass any other writ, order or direction in the nature of mandamus to cancel/review the current toll tax rates under the pretext of realization of their capital invested in the project and further to restrain Respondent No. 1 & 2 to levy or collect any user fee (toll tax) till final completion of six laning of the Project; (iv) to pass any other writ, order or direction in the nature of mandamus to appoint any Court Commissioner to determine as to whether any toll tax is imposable upon the users of the stretch of Project qua Road tax & other cess etc. (v) This Hon'ble Court may be pleased to pass any other writ, order or direction as may be deemed fit and proper in the facts and circumstances of the case in favour of the petitioner. (vi) award costs to the petitioner from the contesting respondents."
(3.) THE writ petition was entertained by learned Single Judge. On 1st September, 2014, learned Single Judge passed the following order: - - "Heard. Despite earlier directions of this court, the respondent -National Highways Authority of India (NHAI) could not satisfy as to why action has not been taken strictly as per the terms of the agreement between the parties for substitution agreement. The copy of substitution agreement has been presented before the court. The reference of para 3.3 and 3.4 has been given. The aforesaid paras provide as to how substitution would occur and the process of substitution. Those paras are quoted hereunder for ready reference - "3.3 Substitution upon occurrence of Concessionaire Default 3.3.1 Upon occurrence of a Concessionaire Default, the Authority shall by a notice inform the Lenders' Representative of its intention to issue a Termination Notice and grant 15 (fifteen) days time to the Lenders' Representative to make a representation, stating the intention to substitute the Concessionaire by a Nominated Company. 3.3.2 In the event that the Lenders' Representative makes a representation to the Authority within the period of 15 (fifteen) days specified in Clause 3.3.1, stating that it intends to substitute the Concessionaire by a Nominated Company, the Lenders' Representative shall be entitled to undertake and complete the substitution of the Concessionaire by a Nominated Company in accordance with the provisions of this Agreement within a period of 180 (one hundred and eighty) days from the date of such representation, and the Authority shall either withhold Termination or undertake Suspension for the aforesaid period of 180 (one hundred and eighty) days; provided that upon written request from the Lenders' Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by a period not exceeding 90 (ninety) days. 3.4 Procedure for substitution 3.4.1 The Authority and the Concessionaire hereby agree that on or after the date of Notice of Financial Default or the date of representation to the Authority under Clause 3.3.2, as the case may be, the Lenders' Representative may, without prejudice to any of the other rights or remedies of the Senior Lenders, invite, negotiate and procure offers, either by private negotiations or public auction or tenders for the take over and transfer of the Project Highway including the Concession to the Nominated Company upon such Nominated Company's assumption of the liabilities and obligations of the Concessionaire towards the Authority under the Concession Agreement and towards the Senior Lenders under the Financing Agreements. 3.4.2 To be eligible for substitution in place of the Concessionaire, the Nominated Company shall be required to fulfil the eligibility criteria that were laid down by the Authority for short -listing the bidders for award of the Concession; provided that the Lenders' Representative may represent to the Authority that all or any of such criteria may be waived in the interest of the Project, and if the Authority determines that such waiver shall not have any material adverse effect on the Project, it may waive all or any of such eligibility criteria. 3.4.3 Upon selection of a Nominated Company, the Lenders' Representative shall request the Authority to: (a) accede to transfer to the Nominated Company the right to construct, operate and maintain the Project Highway in accordance with the provisions of the Concession Agreement; (b) endorse and transfer the Concession to the Nominated Company, on the same terms and conditions, for the residual Concession Period; and (c) enter into a Substitution Agreement with the Lenders' Representative and the Nominated Company on the same terms as are contained in this Agreement. 3.4.4 If the Authority has any objection to the transfer of Concession in favour of the Nominated Company in accordance with this Agreement, it shall within 7 (seven) days from the date of proposal made by the Lenders' Representative, give a reasoned order after hearing the Lenders' Representative. If no such objection is raised by the Authority, the Nominated Company shall be deemed to have been accepted. The Authority thereupon shall transfer and endorse the Concession within 7 (seven) days of its acceptance/deemed acceptance of the Nominated Company; provided that in the event of such objection by the Authority, the Lenders' Representative may propose another Nominated Company whereupon the procedure set forth in this Clause 3.4 shall be followed for substitution of such Nominated Company in place of the Concessionaire." It is admitted that on account of concessionaire's default, a notice to inform about intention to issue a termination notice was given with 15 days' time to make a representation by the lenders' representative stating the intention to substitute concessionaire by a nominated company in its place. Para 3.3, quoted above, refers to undertake and complete substitution of the nominated company within a period of 180 days. It is admitted by the parties that aforesaid period has already expired in the month of August, 2014. As per para 3.4, the procedure of substitution has been given. It is not clarified as to why process of substitution has not been adhered to. The events brought before the court show non -adherence of the agreement. This court, while passing previous order, made it clear that if the court would not be satisfied with the action of the respondents and the way events have taken place, the matter would be referred to the CBI for investigation. The order aforesaid was passed to make aware about it because a prayer to this effect does not exist in the writ petition but it makes prayer for any other appropriate relief. This court granted time to clarify certain issues which were very specific and for adherence of the agreement in the present scenario and for collection of toll, however, it seems that even after passing of the order, the NHAI has failed to take up the matter properly and the IDBI is bent upon to flout terms of the agreement. The bank is not party to the litigation, however, if the matter is referred for investigation by the CBI, it would be against all concerned. At this stage, petitioners submit that NHAI has taken a decision to increase the toll despite non -completion of the work and bad condition of the road. Mr. Subhash Janu, Project Director, NHAI submits that the terms of agreement provides yearly increase of toll. It is looking to arrangement to maintain four -lane while undertaking the work of widening and conversion to six -lane road. The petitioners submit that even four -lane road has not been maintained as per the terms of the agreement, to which, Mr. Shashank Shekhar, Director of the respondent No. 5 -Pinkcity Express Ltd. has made contest. They have even shown their willingness to file an additional affidavit that four -lane road has been maintained. Mr. Subhash Janu, Project Director, NHAI has also accepted that increase of the toll is on the condition to maintain four -lane road and since the increase of toll is provided under the agreement, it has been made without exception. This court asked as to whether increase in toll is provided even if there remains default on the part of the contractor to carry out and complete the work specially when a notice for termination has been given to the contractor by the NHAI, that too, in the month of February, 2014 and the increase of toll was subject to maintenance of four -lane road. In view of above, respondent No. 5 -Pinkcity Expressway Ltd. so as the National Highways Authority of India may file additional affidavit/s to the effect that four -lane road has been maintained as per the terms of the agreement. The additional affidavit may be filed within seven days. If the NHAI feel that four -lane road has not been maintained as per the terms of the agreement, they may not file additional affidavit as directed above. In that case, presumption would be that four -lane road has not been maintained as per terms of the agreement, but, till the next date and facts comes regarding maintenance of four -lane road as per terms of the agreement, NHAI will not effect increase of toll. List these cases on 10.9.2014. All the parties are given liberty to file necessary documents to bring other facts on record so that on the next date, matter may be heard and decided finally.";