The National Highways Authority of India (NHAI) on Monday informed the Delhi High Court that the concessionaire of the Delhi-Gurgaon expressway had misrepresented the revenue collection from the toll booths.

“My fingers have been burned,” Senior Advocate Sandeep Sethi, who is representing NHAI, said, while telling the court that his client had asked KPMG in July to carry out an independent verification of the daily traffic and toll booth collections, after “developing apprehensions that the concessionaire was misreporting collections”.

NHAI had issued a showcause notice to the concessionaire, Delhi Gurgaon Super Connectivity Limited (DGSCL), after the auditor had reported inaccuracies in revenue figures.

During arguments, Sethi also alleged that after the showcause notice was issued, NHAI’s share of revenue from the toll booths had risen from Rs 1.22 crore in August to Rs 1.82 crore in September. “The revenue share for the NHAI jumped by 60 lakh,” Sethi said.

The NHAI had filed a criminal complaint against D S Constructions, DGSCL’s parent company, earlier this month, accusing the concessionaire of cheating and causing wrongful loss by under-reporting traffic at the 32-lane toll plaza.

Sethi also argued that despite an agreement between NHAI and D S Constructions, the concessionaire had refused to let NHAI staff man the booths.

Contending that the concessionaire should be “substituted with another eligible entity”, Sethi told the bench of Justice Manmohan Singh, “NHAI, as a receiver of the property, will run the toll business, until the time it identifies, evaluates and finalises a substitute concessionaire.”

The HC was hearing arguments on a plea filed by D S Construction against a notice issued to it by NHAI on December 7, 2012, to terminate the concession agreement which permitted the private company to run both the toll booths and the expressway.

NHAI had also accused concessionaire Delhi Gurgaon Super Connectivity Limited (DGSCL) of fraud, claiming that the company had re-financed the project without NHAI’s approval. The highway authority had also accused DGSCL of failing to improve services at the 32-lane toll plaza.

Source-http://www.indianexpress.com

MANGALORE: Travelling on bad roads and most of us would probably mutter and curse the authorities concerned under our breaths. But not S S Khazi, city-based advocate and a permanent resident of Someshwar-Uchil, who promptly served notices on them and also sought damages for the agony that he is forced to undergo for being forced to travel on such roads. The road in question is the Talapady-Pumpwell stretch of National Highway 66.His daily travel from Someshwar to the city, some 15-km away where his office is located, proved to be an excruciating experience for this advocate. His grouse is the fact that the bad condition of the road is the failure on part of the National Highways Authority of India, ministry of road transport and highways and Navayuga Udupi Tollway Pvt Ltd that is carrying out four-laning of this stretch to ensure optimal upkeep of the road during construction.

 Citing section 5 of the National High Act, 1956, read with section 11 and 12 of the National Highways Authority of India Act, 1988, Khazi said the authorities concerned have responsibility to ensure proper repair of NH 66.

Khazi pointed out that since the last three years, maintenance and repair work on the NH is almost non-existent and even the repair work carried out is shoddy at most places.

The work on four-laning that started in 2010 is crawling, Khazi said, adding that the “repairs” carried out has resulted in more bouncy and dangerous surface. The condition of the road has also prevented him from using the car, Khazi said, pointing out to the difficulty that emergency and public transport vehicles face in traversing this stretch.

Taking umbrage to assurance given by NHAI official that the people can experience beautiful four-lane road in next six to eight months, Khazi said the immediate concern is non-maintenace of the old road. Demanding that all concerned make the highway motorable, Khazi sought a compensation of Rs 5 lakh for failing their legal duty or risk further civil and criminal proceedings. He also sought Rs 5,000 as cost of the legal notice.

 

Source-http://articles.timesofindia.indiatimes.com

Political force majeure means an event involving risks which generally relate to changes in the political environment (embargoes, riots, insurrection, blockade, terrorist actions and war) or legal environment (changes in law or licences, permits and consents necessary for the project).For exploring the option of acquiring the toll plaza by invoking the political force majeure clause, the government had sought advice from the law department. The law department wrote the clause that provides that expropriation of compulsory acquisition of any project assets or rights of the concessionaire could be made by any government agency, including the Haryana government.

“However, the matter involves huge financial implications. Also it is pending adjudication before the HC. If the termination notice issued by the NHAI (National Highways Authority of India) is held legal, the financial liabilities shall be much less than the state invoking political force majeure clause of the agreement. It is suggested that Haryana should support the termination notice and get the matter resolved from the court urgently in public interest. So, under these circumstances, it would not be appropriate to proceed further ignoring the termination notice and stay order passed by Delhi HC,” the law department wrote.

 

BACKGROUND
A concession agreement was signed in 2002 between the NHAI and concessionaire Jaypee DSC Ventures Limited (later named Delhi-Gurgaon Super Connectivity Limited) for making the Delhi-Gurgaon section of the national highway-8 into an access controlled highway on built-operate-transfer (BOT) basis for a concession period of 20 years.

A state-support agreement of the project was signed among the concessionaire, NHAI, Haryana and Delhi governments. The project was put to commercial operation in January 2008. Subsequently, problems pertaining to traffic — long queues and logjams — on toll plazas started affecting the commuters.

In March this year, the NHAI had issued a notice of termination of the agreement to the concessionaire on the grounds such as non-fulfillment of various clauses, and non-maintenance of the main accessway and lanes.

Officials said the concessionaire was expected to improve the lanes at Kherki Dhaula toll and integrate the collection system at the main Gurgaon toll plaza. The notice was also issued as the concessionaire had raised loans by securitising the toll collection and without informing the NHAI.

The Delhi high court, subsequently, stayed the effect of the termination notice after the concessionaire challenged it in court.

In May, Haryana chief minister Bhupinder Singh Hooda wrote to the NHAI seeking shifting of the two toll plazas — at the entry of the Gurgaon and near Kherki Dhaula to Bilaspur.

 

TWO OPTIONS EXPLORED
The matter was discussed in a board meeting of the NHAI on May 14 and it was conveyed to the Haryana government that the first option was to press before the high court to allow termination of the concession agreement in the event of concessionaire’s default. In this case, the termination payment works out to beRs. 118 crore.

The next option was to press before the high court to allow the NHAI to acquire the toll plaza, citing political force majeure in light of problems being faced by citizens and request made by the government. The NHAI though put a rider that in such an eventuality: a clear commitment should be obtained from the government that the liability on account of termination payment – around ` 335 crore and any other claim which may arise on the account of termination — will be borne by the government

 

HARYANA BECOMES PARTY TO THE CASE
The state government then got itself impleaded in the high court. In its application, Haryana said it supported the termination notice issued by the NHAI and requested that both existing toll plazas be removed and erected at Bilaspur on the NH-8.

It also prayed that the high court may terminate the agreement with a one-time termination payment of Rs.118 crore or allow a Haryana’s proposal to acquire project/rights under political force majeure clause whereupon the state will bear liability on the account of termination payment. If the two options are not possible, the government may be allowed to operate a single toll plaza in Bilaspur

 

Source-http://www.hindustantimes.com

 The court said that at present, there is no mechanism (for awarding contracts on the basis of competence), but there needs to be one.

A bench of Chief Justice Mohit Shah and Justice M S Sanklecha was hearing a suo motu public interest litigation on the pathetic potholed condition of the city’s roads.

Various agencies had been called by the court to give their views and suggestions in the matter.

The Public Works Department gave a presentation of its plans to improve the condition of roads.

Presenting a more concrete roadmap, BMC counsel Milind Sathe said awarding of contracts should be performance-based. Additional municipal commissioner S V R Srinivas said the civic body has plans to start a comprehensive traffic mobility scheme for the city (see box). “A study would be launched soon,” he said, to bring in greater uniformity in policy. A unified Metropolitan Transportation Authority has been formed, but it lacks legislative teeth, a lacuna which state advocate general Darius Khambata said he would push the government to fill.

Khambata said, “Contractors who perform well must be awarded and those who do defective work, blacklisted.”

The CJ said, “Yes, why should awards not go to the most competent contractor and not merely to a lowest eligible bidder?”

The hearing was at the court’s conference room as many stakeholders including lawyers, citizens and experts were being represented.

Advocate Prateek Sekseria, appearing for a bunch of advocates residing in the western suburbs whose daily commute on Western Express Highway turns into a nightmare, pointed out to a crater on a suburban flyover. “The blame game should stop and agencies must fix the underlying issue of poor quality work.”

The HC adjourned the matter for further hearing to November 22.

Source- http://articles.timesofindia.indiatimes.com

 

 

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