Smt. Ratna Parabha & Anr. vs Keshrilal & Ors.

Agony, anguish and anxiety of the petitioners are to the delay in completion of railway over bridge (for short ROB) between Kesarbagh Road to Annapurna Road, Scheme No. 141 RE-1 even after 8 years. The work order to construct this ROB

had been issued by the respondent No.2 to the respondent No.3 on 18.07.2007 and the work had to be completed within twelve months from the date of the said work order i.e. by 17.07.2008.

This is the second round of litigation. Earlier also vide order dated 25-04-2014 in WP No. 10317/2013 PIL this Court had issued following directions :- "It has been jointly stated by learned counsel for the respondent No.2 and 3 that the respondent No.3 has by now completed 85% of the work entrusted to them.

Learned counsel for the petitioner submits that progress of the work is extremely slow, thereby causing inconvenience to the public at large. We expect the respondent No.2/IDA to monitor the work of the 3rd respondent in promptitude. In case, the respondent No.3 is not able to do the work and is not performing the work at the speed at which it is expected then the respondent No.2/IDA shall be free to take appropriate action/steps against the respondent No.3 in accordance with the terms of the contract and law.

With the aforesaid direction, we adjourn the matter."

Later, vide order dated 20-08-2014 this petition had been disposed off with the following observation :- "This Court had issued directions to the respondents from time to time for speedy completion of ROB.

Today, it has been informed by the

respondents that the road, which was not motor-able for few days due to lying of the heavy iron girders, has now been made motorable by the contractor by lifting the girders and raising constructions. It has been stated on behalf of the Indore Development Authority (IDA) that they are pursuing with the Railway Authorities for grant of necessary sanction to construct remaining part of the bridge over railway line.

Shri Anand Pathak, learned counsel appearing for the Indian Railways, has stated that within two weeks necessary permission shall be granted by the Indian Railways. He submits that in case it is required, second respondent will be directed to complete the necessary formalities or satisfy the queries, as may be made.

Shri Anand Soni, learned counsel appearing for the second respondent submits that as and when the Railways will direct to contact the Competent Authorities of the Indian Railways, the Authorities of the IDA and the concerned Contractor shall immediately contact the Indian Railways and do the needful.

Shri Shekhar Bhargava, learned Senior Counsel appearing for respondent No.3 - Contractor, who is constructing the ROB, submits that in case the sanction is received by the Indian Railways within two weeks, the third respondent - Contractor shall complete the work in question i.e. construction of ROB on or before 30th November, 2014, which otherwise also, the last date of period of the contract within which the ROB is to be constructed.

Recording the stand taken by the

respondents and the Indian Railways, we dispose of this petition; however, with liberty to the parties to seek revival of the petition, in case need so arises."

Work could not be completed even after disposal of W.P. No.10317/2013 with the aforesaid direction for the one reason or the other. Disconcerted petitioner again approached the Court through the present petition.

We by order dated 3.9.2015 directed the learned Commissioner (Revenue) Indore, Div. Indore to look into the matter and monitor the progress of the Kesarbagh - Annapurna Road ROB work and if required, may call a meeting with the Officers of the IDA and the Railway so that the work may be completed at the earliest.

On 8.10.2015 second action taken report was submitted by the learned Commissioner. Relying on the aforesaid report a direction has been made to the old Contract to complete the remaining work and directed the Commissioner to examine the possibility of undertaken by the Contractor and examine the matter in detailed calling a construction programme from the contractor and submit the report expeditiously as early as possible and if he came to the conclusion that it is practically impossible for the contractor to complete the work then he may give the remaining work out to two contractors whose bid has been accepted by the IDA.

On 6.11.2015, the learned Commissioner Indore Division Indore submitted third action taken report and proposes that old contractor be allowed to complete the remaining work on

the following reasons :- 1. The old contractor has promised not to raise any legal, financial or technical issues till he completes the work.

The contractor has tied up the several vendors, suppliers and manufacturers for the items, required for the execution of the work.

In case of failure of old contractor to complete the work in 35 days, sufficient to cross the traffic, his claims against the IDA will stand diluted to that extent. Also old contractor shall have no right to prevent IDA by any means to award work to new contractor.

In the event the old contractor is not able to show the commensurate progress within first 20-25 days, IDA will at the most lose some 20- 25 days while the contractor will have incurred expenditure and will lose its credibility in the market.

Thus in worst scenario IDA may loose 20-25 days but will gain immediately in arbitration. Also this Hon''ble Court will have satisfaction that we had tried all possible means for early completion of bridge. Besides in all likelihood the bridge will be completed within 50 days.

And the Commissioner recommended the following :- 1. The old contractor may be allowed to re-initiate the work and complete the work sufficient to cross the traffic within 35 days, while completing the contracted work in toto in 50 days.

In case of failure of the old contractor to show on site the commensurate progress for completion of the project the IDA Board in consultation with the undersigned shall be free to stop the execution of work by old contractor and award it to the new contractor.

In the event of failure of old contractor to complete the work sufficient to cross the traffic within 35 days the IDA will not have any liability

against the old contractor for making of payment for the items executed/ordered by the old contractor from the date of getting order of reinitiate of work till the order of stoppage of work.

That if the order for stoppage of work by IDA is issued then the old contractor will not object to award of remaining work to the new contractor.

That this Hon''ble Court may please to instruct Indore Development Authority and old contractor to strive together to finish the work with desired quality in time-line as this may be the last chance for both of them to redeem their reputation and may be the last chance for the citizens of Indore to see their bridge getting complete at the earliest.

However, if the old contractor completes the work as per the given time-line for crossing over of the traffic, then IDA should ensure that the payments are made to the contractor as per the old contract conditions. Therefore, I feel that the contractor should be given 50 days for completely finishing of all the remaining items.

In the light of suggestions submitted hereinabove by the undersigned and in the extraordinary circumstances of involvement of Indore Development Authority Board in termination of contract, the Indore Development Authority can resume the work with old contractor only by the order of this Hon''ble Court.

Relying upon the aforesaid report of the learned Commissioner, we permitted the old contractor to complete the major work, which has been completed.

In precise following are the works, which are still incomplete as mentioned in the letter No.8296 dated 05/11/2016 issued by Indore Development Authority, Indore, which can be read with this petition :-

Painting like Railway portion by Duck, primary coating in various places.

Construction of slip/service roads and Link road.

(a) Any, I.R.C. Standard specification and codes of practive or criteria for road bridge for road bridges other than "A" above, but published prior to last date of issue of bid form.

(b) For any item not covered by A & B above, specification for Road & Bridge works published by I.R.C. For Ministry of Surface Transport (Roads Wings), Government of India.

(c) For items not covered by any of the A, B & C above relevant provision of IS codes of practice.

(d) For any item not covered by A, B, C & D above, the relevant provisions from B.S. and AASHTO Codes of Practice.

(e) For items not covered by any of the above Standards & Specifications sound Engineering practice & provisions in the Departmental design & provisions of relevant Codes of other nation shall be referred. In this regard decision of the Engineer in Charge shall be final and binding.

Down Tech Pipe, G.I. Water spouts C.I./M.S. Grating and G.I./HDPE pipes at each pier and abutment location.

Pier protection to piers and road crossings by constructing RCC pardi.

Road mucking and Road furniture like paint with reflector thermoplastic compound.

Construction of RCC staircase at 4 corners of ROB outside Railway boundary." In case of need of any clarification refer to letter No.8296 dated 05/11/2016 issued by Indore Development Authority, Indore.

Contention of the Respondent No.3, executing agency is that the work is pending, because detail drawing design of the incomplete work has not been supplied by the Respondent No. 2, agency responsible to get the work done. In case he is provided the detail drawings designs, he will complete the remaining work within two months. While statement of the Respondent No.2 is that they have already supplied all necessary drawings designs and it is the Respondent No.3 who is not taking interest in completion of the work. It is alleged by the Respondent No.2 that the Respondent No.3 is not serious in completion of the work. It is repeatedly offered by him (the Respondent No.2) that if the Respondent No.3 finds himself incapable or unable to complete the work, they be permitted to take over the work and in that case they will finish all the remaining works within a month. Both the Respondents are making allegations and counter allegations against each other. They have filed affidavits and counter affidavits to support their contentions.

What we feel in the present case is that whosoever may be at fault, it can be decided in an appropriate proceeding and can also be punished or penalized accordingly, but at present, the ultimate sufferer is the public at large. This is the core issue of our concern.

We have given patient hearing and heard both the parties, specially, both the Respondents at length.

Considering the aforesaid disappointing situations, without indulging in blame game or charges-counter charges, we direct the learned Commissioner to examine this matter by calling a meeting with the Chief Executive Officer IDA, Indore and the Contractor as well Chief Engineer of IDA and provide all the drawing and designs for the left out work within a period of one week from today and submit its report before this Court supported with the affidavit of Chief Executive Officer, IDA. We further direct that the Respondent No.3 shall complete the remaining work in respect of ROB in question within two month from the date of the meeting convened by the Commissioner, Indore on the basis of whatever drawings designs have been supplied to him. In case he thinks that no detail drawings designs have been provided to him in respect of any particular work, he shall complete the same strictly as per terms and conditions of the contract, of course, without compromising with the technical specifications, quality and esthetics of the work in totality.

With the aforesaid directions, we disposed off the present petition, however, with liberty to approach this Court in case need arises. No order as to the cost.

The matter be listed to file compliance report after eight weeks.