Expressway operator gave wrong figures, NHAI tells court

October 29, 2013

Aneesha Mathur : New Delhi,

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.


HC orders supervision of road resurfacing, repairs

October 25, 2013



AHMEDABAD: The Gujarat high court on Thursday asked the Ahmedabad Municipal Corporation ( AMC) to form a team to supervise post-monsoon road resurfacing work in the city to ensure that quality standards are maintained as mentioned in the terms of the contract.The court passed this interim order in response to a PIL filed by Ahmedabad Traffic Consultative Committee seeking directions to the authorities for improvement of city roads and for penal action against erring contractors for sub-standard work. The petitioner’s counsel Parth Contractor said that the civic body had sought time till beyond vacation to file a reply but, by then, road repair and resurfacing work would be over. Hence, to ensure that the construction quality does not suffer, the court had passed this interim order.Besides improvement of the condition of city roads and action against contractors and officials, the PIL also demanded immediate cancellation of work orders given to the same contractors whose poor work had been exposed several times. It pointed out that construction and resurfacing of roads are required to be monitored to maintain quality, especially when defaulting contractors have been re-awarded the contracts.

Citing examples of dilapidated roads on various stretches in the city, the PIL has urged the court to ask the Road and Buildings Department to perform its statutory duty so that people do not suffer. It has also requested the court to compel the authorities to publicize details of the contractors, the value of the contract and the project duration in order to bring transparency and accountability in the allotment of contracts.

The PIL has also demanded that a third-party consultant is required in order to monitor and examine the road-worthiness of the newly laid and resurfaced roads of the city.


NHAI to SC: No stretch of Panipat-Jalandhar highway complete

October 23, 2013

R Sedhuraman
Legal Correspondent

New Delhi,


The National Highway Authority of India (NHAI) today told the Supreme Court that the company which was given the contract for constructing the 291-km Panipat-Jalandhar highway had not done complete work even on one square inch of the road.

Arguing before a Bench comprising Justices Gyan Sudha Misra and Pinaki Chandra Ghose, senior counsel Indu Malhotra said though the company, Soma Isolux, was claiming that 70 per cent of the work was over on the Rs 4,500 crore project, no stretch of the highway was ready with all the layers laid as specified in the contract.

Malhotra made the statement while responding to a query by the Bench on the distance between the toll plazas at Karnal and Ambala and the completed stretch of the six-lane highway.

Strongly opposing the company’s plea for shifting the toll plazas to different locations, NHAI disputed the contractor’s logic behind the move. The company was claiming that shifting was necessary to plug leakage of toll revenue arising from vehicles bypassing the plazas, but the real reason was to bring vehicles from additional areas under the purview of toll collection and earn as much as Rs 1,000 crore more every year, the authority said.

The additional areas sought to be covered by the company had not been taken into account while finalising the terms of the bid for awarding the contract for the project, the NHAI argued. Had it been taken into account, the terms would have been quite different.

However, the Bench wanted to know as to why the authority had inserted a clause in the contract with a provision for shifting of the toll plazas and subsequently granted in principle consent as well.

The NHAI said the approval was subject to endorsements by an independent engineer and the Centre, which decided the toll. The independent engineer and a safety expert had rejected the plea for shifting the plazas three times, citing financial implications and safety.

The NHAI also maintained that while accepting the contract the company had agreed to run the three toll plazas at the pre-existing places. Further, the company has been collecting toll from May 2009 even before beginning work on the project and earning about Rs 304 crore a year since then. The arguments remain inconclusive.

The company has come to the SC challenging the HC verdict cancelling the contract. The SC stayed the HC verdict on June 12 and allowed the company to go ahead with the work. But NHAI today contended that the construction work was at a standstill with the company insisting on shifting the plazas before resuming the project.




Mangalore lawyer slaps notice for bad upkeep of national highway

October 21, 2013


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.



PIL seeks inquiry in road development project

October 21, 2013



KOLHAPUR: City-based social activist Subhash Vani has filed a public interest litigation (PIL) in the Bombay high court seeking a thorough inquiry into the work as part of the Kolhapur Integrated Road Development Project (KIRDP) and the land leased to the IRB Company.The high court will on Monday hear the PIL, which will be clubbed with a writ petition filed by the IRB Company seeking police protection for collection of toll. The PIL seeks an inquiry into the cost escalation of the project, which has gone up to Rs 512 crore from Rs 220 crore at the time of the agreement.Vani said, “There should be an probe into the quality of the roads and the pending work. We have also raised the issue of the policy of the build-operate-transfer (BOT) which we believe has failed across the state. Our demand is that the BOT policy should be suspended by the state government.”

He added that as per the agreement, the IRB Company will be allowed to collect toll for 30 years. The developer company may demand extension of the toll collection for a few years to recover the additional money it claims to have invested, he claimed.

Kolhapur was the first city in the state where the Maharashtra Road Development Corporation ( MSRDC) decided to experiment collection of toll on a public-private-partnership basis for an intra-city road development.

On the other hand, city-based communist leader Govind Pansare alleged that there were many flaws while drafting the project proposal and its implementation by the IRB Company. The KMC has leased out the land of about three lakh sq ft at Temblaiwadi in the city at an annual rent of Re 1 since 2009. The IRB leased out the land to a private hospitality firm, which is now constructing the luxurious hotel at the site, he said.

“The developer company has leased out the land given by Kolhapur Municipal Corporation to a hospitality company without taking the requisite permissions from the civic body. We want all these matters to be discussed in the high court and demand a CBI probe. Strict action should be taken against those found guilty,” Pansare told mediapersons.

PIL seeks action on bad Ahmedabad roads

October 18, 2013



AHMEDABAD: A PIL was filed in Gujarat high court seeking that the government be directed to improve the condition of roads in the city and take action against contractors for sub-standard work. The PIL also demanded immediate cancellation of work orders given to contractors whose poor construction standards have been exposed.A city-based group – Ahmedabad Traffic Consultative Committee – filed this PIL through advocate Parth Contractor, and sought the HC’s intervention to address “the never-ending woes of potholes and cave-ins” in the city. He argued that construction and resurfacing of roads are required to be monitored to maintain quality. He also contended that contractors, who have been held as defaults in the past, are being re-awarded resurfacing contracts and this results in a wastage of public money.

The PIL called on the Roads and Buildings Department to perform its statutory duty so the public doesn’t suffer poor road conditions.

It demanded penal action against contractors who use sub-standard materials. It also requested the court to compel authorities to publicize details of contractors, values of contracts and project durations to help bring transparency and accountability to the tendering process.

The PIL also demanded that a third-party consultant be required to monitor and examine quality of newly laid and resurfaced roads in the city.

The petitioner cited examples of dilapidated roads in city areas – the newly constructed flyover in Ellisbridge, the patch from Manav Mandir to Helmet circle etc – to highlight how recently resurfaced roads deteriorate in brief spells of rain. The PIL contended that malpractices of adhering to construction norms continue because authorities take a soft approach towards defaulting contractors, and no penal action is taken.

The court asked the petitioner to give copies of the petition to all concerned parties and scheduled a further hearing for next week.

Delhi-Gurgaon project: law dept advises govt against acquiring toll plaza

October 15, 2013

Hitender Rao, Hindustan Times  Chandigarh,



Haryana’s law department has advised the state government against acquiring the toll plaza rights of the Delhi-Gurgaon toll project by invoking political force majeure clause, citing a pending litigation in the Delhi high court and huge financial implications.

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.


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.


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


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



‘Give road contracts to the competent’

October 7, 2013

Swati Deshpande, TNN

MUMBAI: Accepting suggestions on how to improve the state of Mumbai’s roads, the Bombay High Court on Friday said there was a consensus that contracts for construction, repairs and maintenance of roads must be awarded on the basis of competence and qualification of a contractor and not merely to the lowest bidder.

The court said heavy penalty must be imposed for delays in projects and firms who do defective work must be blacklisted.

 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.



Private highway developers petition govt for relief

September 25, 2013

Dipak Kumar Dash, TNN |

NEW DELHI: Private highway developers are trying to extract maximum “relief” from government, citing the continuing economic gloom that has impacted their projects. Road builders who have started 16 premium projects including IRB, L&T, Reliance Infra, Ashoka Buildcon and Essel Infraprojects want the government to allow rescheduling of annual premium payment as is being considered for 23 other “stressed” projects.Highways ministry has sought Cabinet approval for rescheduling of upfront annual revenue or “premium” in case these stressed projects.

After receiving a proposal from National Highway Builders Federation (NHBF) and IRB that the proposed premium rescheduling scheme should be extended to all premium projects.NHAI has asked the ministry to put a supplementary note for Cabinet’s consideration. NHBF has said, “Selective approach in allowing rescheduling of premium will invite litigation and any policy amendments needs to be extended to all premium projects awarded, irrespective of these projects have been issued appointed date and started construction or not and allow the concessionaire who are opting for this scheme.”

It added any litigation on this issue may derail the scheme and will in turn affect the revival of this sector. NHBF has said due to economic slowdown last year and rate of GDP growth plummeting to a decade low 5% have impacted toll revenues as low as 50% than estimated in majority of projects.

According to NHAI sources, the premium committed in case of already started 16 projects comes close to Rs 55,000 crore in the next 20-30 years and developers of the yet to be started 23 projects have committed to pay Rs 1 lakh crore to the authority.

Ministry officials said it’s impossible to add fresh ones to the list of identified “stressed” projects since a consensus has already been achieved among law, finance and road ministries to allow premium rescheduling of 23 projects including GMR’s Kishangarh-Udaipur-Ahmedabad highway. “By bringing in more projects under this list we will open a new window for debate and objections. How can we say that projects where work has started are under stress?” asked a ministry official.

Moreover, the signal that economic affairs secretary Arvind Mayaram sent on Monday on premium rescheduling at a FICCI summit indicates the amount of heat this new proposal may generate. He had said that to avoid “moral hazard” because of this move, there is need to identify “stressed” projects objectively and to have a methodology.

He had added that there is need to find out whey the particular projects are stressed. “If it’s because of authority’s default then they must take the haircut. We can’t brush it under the carpet. If the developer is at fault then it must take the haircut,” Mayaram had said.

The expenditure secretary had also said that there is need of a regulator to deal with such issues objectively.

Green tribunal fines NHAI, BRO Rs 25,000 each

September 11, 2013

Neha Sethi

NHAI and BRO will have to deposit the cost with the legal bar office

“We must notice that in the affidavit filed by NHAI, it is claimed that ‘there is no section of National Highway entrusted to NHAI for construction in Uttarakhand where there are chances of land sliding’. This statement is factually incorrect and is a matter of public knowledge,” the tribunal noted in its order. Photo: AP<br />
(“We must notice that in the affidavit filed by NHAI, it is claimed that ‘there is no section of National Highway entrusted to NHAI for construction in Uttarakhand where there are chances of land sliding’. This statement is factually incorrect and is a matter of public knowledge,” the tribunal noted in its order. Photo: AP)


New Delhi: The national green tribunal on Monday imposed costs of Rs25,000 each on the National Highways Authority of India (NHAI) and the Border Roads Organisation (BRO) in a matter related to the recent Uttarakhand floods.The bench headed by chairperson Swatanter Kumar said a statement in an affidavit submitted by NHAI was factually incorrect. 

“We must notice that in the affidavit filed by NHAI, it is claimed that ‘there is no section of National Highway entrusted to NHAI for construction in Uttarakhand where there are chances of land sliding’. This statement is factually incorrect and is a matter of public knowledge,” the tribunal noted in its order.

NHAI and BRO will have to deposit the cost with the legal bar office.

In its previous hearing on 26 August, the green court had pulled up BRO and NHAI for not conducting a study before widening highways in the Himalayan state.

The Supreme Court had on 13 August directed the environment ministry not to grant forest or environment clearance for hydroelectric projects in Uttarakhand till a panel submits a report on the impact of such projects on the biodiversity of the region.

The committee has not been constituted yet.

“It is further surprising that even in terms of the Orders of the Hon’ble Supreme Court of India dated 13th August, 2013, the Committee has not been declared as being constituted so far,” the green court said on Monday.

The tribunal directed the secretary at the environment ministry to ensure that the committee is constituted within one week because no orders of the tribunal can proceed without the committee being in place.




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