Varad Associates Through Authorised Signatory v. National Highways Authority of India Through Its Chairman

NAVIN CHAWLA, J. NOVEMBER 18, 2020 'AA'

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 21.10.2020 Date of decision: 18.11.2020 + W.P.(C) 8125/2020 & CM APPL. 26380/2020 M/S WADIA TECHNO-ENGINEERING SERVICES LIMITED ..... Petitioner Through: Mr.Srinath Sridevan, Mr.Nikhil Swami, Ms.Aishwarya Nathan & Ms.Divya Swami, Advs. versus NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Respondent Through: Mr.Ankur Mittal & Mr.Abhay Gupta, Advs. + W.P.(C) 8240/2020 & CM APPL. 26708/2020 VARAD ASSOCIATES ..... Petitioner Through: Mr.Sudhir Nandrajog, Sr. Adv. with Mr.Varun Tankha & Ms.Shreya Nair, Advs. versus NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Respondent Through: Mr.Ankur Mittal & Mr.Abhay Gupta, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. These petitions have been filed by the petitioners challenging the impugned circular/order dated 28.08.2020 and 'debarment notice' dated Page 2 25.09.2020 issued by the respondent debarring the petitioners and their directors for one year from participating/engagement in any future project/bid of the respondent, directly or indirectly, with effect from 28.08.2020. 2. As common questions of fact and law are involved, these petitions are being adjudicated by way of this common judgment. The facts are being taken from WP(C) 8125/2020. 3. The respondent had entered into a Concessionaire Agreement with West Gujarat Expressways Ltd. (hereinafter referred to as 'WGEL') for the work of 'widening of the Existing Jetpur – Gondal Section (km 117.000 to km 143.000) from two lane to four lane; making improvements in the existing four lane Gondal – Rajkot Section (km 143.000 to km and Widening of the existing Rajkot Bypass (km 175.000 to km 185.000) from two lane to four lane on NH-8B in Gujarat on BOT Basis. The contract period was of 20 years, that is, from 17.03.2008 to 16.03.2028. 4. Article 20.1 of the Agreement provided for appointment of an Independent Engineer for Inter alia conducting the review of design/drawings for construction, supervision and monitoring of construction activities and other activities relating to Operation and Maintenance (O&M). 5. The respondent appointed SAI Consulting Engineer Limited as an Independent Engineer to supervise the construction of the said section of the highway by WGEL for the period of five years from March, 2008 to Page 3 January, 2013. Thereafter, M/s. Frischman Prabhu Ltd. was engaged as an Independent Engineer for the period February, 2013 to January, 2018. 6. The construction of the Highway was completed by WGEL on 17.03.2008. 7. As the agreement with M/s. Frischman Prabhu Ltd. was expiring in January, 2018, the respondent issued a request for proposal for appointment of the Independent Engineer, pursuant whereto the petitioners in these petitions, forming an association, applied and were successful. An agreement dated 16.01.2018 was executed between the petitioners and the respondent appointing the petitioners as Independent Engineer for operation and maintenance of the existing Four Lane Jetpur- Gondal-Rajkot section of the Highway from 117.600 to 185.000 on NH- 8B in the State of Gujarat. 8. On 08.06.2020, a portion of the retaining wall at Ch.180 collapsed causing the unfortunate death of two persons. The respondent vide its letter dated 09.06.2020 directed the petitioners to take immediate action against the Concessionaire and submit a detailed report on the occurrence of the said incident. The said letter further recorded as under:- "In this regard, this office at various times have shown concern regarding pre monsoon activity and maintenance required to be performed prior to start of Monsoon vide letters under ref 6 & 7 and during site visits of undersigned to ensure smooth flow of traffic and trouble free Highways for the road users. In continuation to this, a meeting was called by undersigned on 14.05.2020 regarding preparation of pre monsoon activity at PIU-Rajkot and during the meeting it was directed by PD Rajkot to Independent Page 4 Engineer to submit the action plan