- (1.) WE have heard learned counsel appearing for the parties.
(2.) IN continuation of our orders dated 12.03.2015, 22.04.2015 and 29.04.2015, the second meeting of all the stakeholders was held on 07.05.2015, the minutes of which have been filed along with an additional affidavit of Shri N.N. Giri, Project Director, Project Implementation Unit, Jaipur National Highways Authority of India. The minutes of the meeting are quoted as below: - Minutes of Meeting Sub: Six laning of Gurgaon -Kotputli -Jaipur section of NH -8 from Km 42.700 to Km 273.000 (length 225.600 Kms) in the state of Haryana/ Rajasthan under NHDP Phase -V as BOT (Toll) on DFBO pattern. A meeting was held with the representatives of Concessionaire, Lenders and IE of above project along with representatives of Govt. of Rajasthan, Haryana at RO/NHAI, Jaipur under the Charimanship of CGM(T) and RO, Jaipur on 07.05.2015. List of participants annexed as Annexure -I. At the outset, the CGM(T) welcomed the participants to the meeting and explained the purpose of the meeting and broad points of discussions on the Project related issues. 1. The Compliance by the Concessionaire to the fortnightly work programme furnished from 2nd fortnight of March 2015 to 2nd fortnight of April 2015 (30.04.2015) was reviewed. The Targets and achievement of the Concessionaire against the fortnightly programme are as under: JUDGEMENT_101_LAWS(RAJ)5_2015.htm As observed the structure progress so far is alright but in case of MCW (widening structure approaches) slight slippage is noticed when compared with the chainages indicated to be tackled by the Concessionaire in the detailed programme. It is informed by the Concessionaire that though part of original locations were not tackled, he did work in other areas as per site conveniences and achieved 4 km i.e. more than the target (2.7 km) for the period. It is also submitted that they have opened 50th structure on one side and full structure would be opened for traffic in a weeks time. The Concessionaire was requested to furnish the exact chainages where the work is completed to assess the claim of 4km achievement. Further, he was advised to make up the total slippage in MCW widening as per programme by the end of 1st fortnight of May'15 and complete the 4.20 km programme by that date. It was also pointed that the BC work is yet to pick up and progress is likely to lag behind target unless the position is improved. Similarly wherever the Dense Bituminous Macadam 2nd layer is due, the same shall be completed by 31st May'15. The IE was requested to furnish the exact quantities of BC work executed so far by 11 -05 -2015. 2. Utility Shifting: The Concessionaire was asked to expedite the utility shifting wherever hindrances were cleared like Shapura, Paota, Kotputli and Behror, etc. Hoever, the Concessionaire expressed that since the hindrances are cleared now, the earlier utility shifting contractors are not ready to take up the work based on estimate sanctioned 3 -4 years back and are insisting for current market rates. The Concessionaire was asked to submit revised estimates as per the applicable rates for consideration and in principle it was informed that the rate modification would be considered as per eligibility wherever the hindrances are cleared now and site is made available. As such the Concessionaire was asked to take up the works on priority. 3. Hindrance Clearance: It was reported that there is good improvement in hindrance clearance and till date, Total 24 Hindrances has been removed in Rajasthan Portion out of total 37 Hindrances. Representative of GoR i.e. SE, PWD has informed that on 09.05.2015 about 11 hindrances were proposed to be cleared in Behror and Concessionaire was requested to provide necessary assistance/equipment. Similarly in case of Sangteda school also, the issue was promised to be resolved in 2 -3 days time and concessionaire was asked to meet to CA(LA)/ADM Kotputli on 08.05.2015. In case of Baba Balnath Samadhi, it was informed that during recent meeting taken by Collector, Jaipur on dated 06.05.2015, it was informed that on RHS, 3 lane work along with Service Road would be allowed by removal of Bavdi and near Samadhi, 2 lane would be allowed with proper safety and extra wide Service road may be constructed beyond the Samadhi by minimizing the Samadhi area. Collector Jaipur has also proposed a Joint Site Visit of Baba Balnath Samadhi on dated 11.05.2015 at 4.00 PM by NHAI, Concessionaire, IE, MLA, Viratnagar, CA(LA)/ADM Kotputli alongwith State Govt. Representatives for existing or proposed arrangements to cross over Peoples from Ashram to Samadhi i.e. RHS to LHS. The hindrance at Ghasipura (S.No.33 of list) was removed on 06.05.2016. In case of Kotputli i.e., Boochaheda area, the issue of hindrance clearance in 200m length in RHS (medical shops, etc) was brought to the notice of ADM/Kotputli. The Shiv temple at Saladwas (S.No.37 in the list) was removed on 27.04.2015 and The Shiv Temple at Km 218.950 at Lakher (S.No.36 in the list) is being also removed today i.e. dated 07.05.2015. Haryana State: The hindrance removal in Haryana is still pending as only 3 are cleared out of total 10 nos. of Hindrances. In Manesar a majority of houses are cleared and utility shifting has to proceed. The Nodal Officer from Haryana requested the NHAI to furnish him the revised status on clearance/pending so that the concerned will be addressed. It was also decided that a meeting at DC level (with DC, Gurgaon and DC, Rewari) would be held by PD/NHAI at the earliest. 4. Maintenance and Safety measures: The Concessionaire submitted that the missing/damaged crash barriers would be completed in 15 days time in packages 4 and 5 and 20 days in other packages. Regarding maintenance and Safety measures, the Concessionaire has submitted that he is attending to the problematic areas. However, the concessionaire was advised to go through the list of locations identified by IE earlier and also fresh requirement if any and to attend to the same on priority. The IE was requested to monitor the same at site and furnish compliance at regular intervals. It was also desired that a joint verification of the maintenance/safety works to be carried out by the teams of IE and Concessionaire. In case of Kotputli service road, the decision of Executive Committee's meeting dated 15.04.2015 regarding CC road as under was informed to the Concessionaire during the meeting - "The Executive Committee decided that construction and maintenance of service road was the responsibility of the concessionaire as per Concession Agreement. It is his duty to maintain it in proper condition as stipulated in the Concession Agreement. Therefore, no case was made out for construction of cement concrete service road under Change of Scope (CoS). If the Concessionaire feels that cement concrete road would be better in the long run, then it be construct by him at his cost". 5. Toll Plazas: The PD pointed out that many of the boom barriers at toll plazas are broken and also advised to have one dedicated VIP/emergency central lane (two way) so that Ambulances etc need not wait at toll plazas. The Concessionaire promised to replace the barriers and examine all possibilities to reduce congestion at toll plaza till the widening/ improvement is completed. The toll plaza staffs are also advised to be trained on behavior and traffic management and on wearing proper uniform etc. With regards to Manoharpur Toll plaza location, the PD informed that as desired in earlier meeting, IE's report is received and the same would be processed and submitted to the competent Authority for approval. 6. Funding: The lenders (IDBI) informed that they would submit the statements of status of funding so far, Escrow account details etc. by 11.05.2015. They were also advised to file the same in Hon'ble High court as desired. It is informed that the Concessionaire deposited the toll revenue share of March'15 and lenders promised to deposit old dues in phased manner. From the oral submission of lenders, it is understood that internal accruals are being released to the Concessionaire at present and very less equity/Debt are infused. Based on the documents to be submitted by the lenders, the NHAI HQ would also be appraised of the status of funding etc. 7. Delinked Structures: The Concessionaire was reminded to submit the programme for taking up the delinked structures where most of the hindrances are either cleared or getting cleared shortly. The Concessionaire submitted that he had already completed 6 laning in these stretches as per scope of Supplementary Agreement and would take up the structures only first after completion of scope as per Supplementary Agreement and also put forth his requests on consideration of escalation for rates etc. However, he was advised to submit the programme pending his reservations on rates, escalation, etc which would be dealt as per NHAI Policy circulars and provisions of Contract Agreement. 8. Other requests by Concessionaire The issues of pending payments due to Concessionaire towards utility shifting and COS etc were also deliberated and the concessionaire was advised to furnish certain missing data/clarifications in order to process his bills as certain variations are observed in estimate/rates etc. It is informed that the Authority/IE would fasten further process based on Concessionaires submissions. The next meeting is scheduled to be held on 09.06.2015. The meeting ended with vote of thanks to the chair. Annexure -I List of Participants I. NHAI: 1.Sh. M.K. Jain, CGM(T)/RO Jaipur 2.Sh. Ajay Bishnoi, GM(T), Regional Office, Jaipur 3. Sh. N.N. Giri, PD, PIU -Jaipur. 4. SH. B.K. Thakur, DGM(T), Regional Office, Jaipur 5. Sh. A.K. Khandelwal, Manager(Tech.), PIU -Jaipur 6. Sh. A.R. Chitranshi Manager(Tech.), PIU -Jaipur II. State Govt. Representatives: 1.Sh. M.G. Maheshwari, SE, PWD, NH Circle Jaipur 2.Sh. V.K. Sharma, EE, PWD, Gurgaon, Haryana 3.Sh. Rajvir Singh Yadav, CA(LA)/ADM Kotputli, District Jaipur III IE M/s. Aarvee Associates 1.Sh. S.Jaswant Kumar, Vice President, M/s. Aarvee Associates 2.Sh. Ernest Rosey, Team Leader, M/s. Aarvee Associates 3.Sh. D.K. Shukla, RE, M/s. Aarvee Associates IV. IDBI Bank (Lenders Representative) 1. Sh. S.K. Sachdeva, General Manager V. Concessionaire M/s. PCEPL 1.Sh. Shasank Shekhar, Director, PCEPL 2.Sh. Ajay Gupta, Vice President 3.Sh. L.R. Singh, Vice President"
(3.) AN objection is taken by Mr. N.M. Lodha, learned Advocate General and Mr. R.N. Mathur, learned Senior Counsel appearing for the Concessionaire, that the minutes of the meeting are recorded by the NHAI much after the close of the meeting and thus, the minutes should not be taken, to either resolve, or finalize the issue, in respect of which they have filed their comments in their affidavits. We strongly object to the attitude of the State Government as well as the Concessionaire. In case the minutes of the meeting are not accurate in respect of the resolutions, the objections should be raised before the NHAI at the first instance. It is not open to the parties to take objection to suit their convenience at the time of hearing of the writ petition, in which we are trying to resolve the issue of completion of six laning of the road. We, therefore, reject the objections about the minutes of the meeting, as recorded by the NHAI.;