PIL (SUo M OTU) 2/2019

For the Applicant Mr. Taka Masa, Sr. Advocate (Amicus

Curiae).
For the respondents Mr, S. Borgohain, Advocate
Mr. R.S. Bisht, Advocate.
Mr. B. Chakma, Advocate.
Mr. Moa Jamir, Advocate for
respondent Nos.6 and 7.
Mr. Basudeb Pal, Advocate for
respondent No.10.
Mr, Imti Imsong, Additional AG,
Nagaland.
Mr. Ajay Batra, GM, NHIDCL.
Mr. Bharat Chugh, Advocate,
Mr, Mayank Arora, Advocate, for
respondent No.12.
Mr. J. Shequi, Advocate for respondent
No.14.

-BEFORE-
HON'BLE THE CHIEF WSTICE
HON'BLE MR. JI'STICE LANUSUNGKUM JAMIR
3t.03.2023
This Court registered this PIL (Suo Moto) vide order
dated 18.10.2019 showing serious concern in the tardy
progress of the construction of phase III of the Highway.
We would briefly reproduce the relevant extracts from
the order dated 18.10.2019 whereby the Instant pIL was
registered.
"On 09.10.2019 a dailg newspaper "Nagaland
Express" had carried a neLos item uherein it was stated
that the construction of four lane road of the National
Highway No.29 between Kohima and Dimapu4 entrusted
to National Highway and Infrastntcture Deuelopment
Corporation Ltmited (NHIDCL) uas started in the year
2015 utith the stipulated coinpletion time of 3 gears. The
time peiod giuen for completion of the construction has
 already passed but seeing the utag hout tle construction
is going on, it is unlikelg that it tuould be completed euen
in the coming tu,to to three years. This road being the onlg
one Luhich connects the State Capital to tle commercial
citg uherein, the communication facilities including th-e
Railwag Station and Airport are located and through
tuhich the State is connected with the rest of the Country,
it is important that the construction is completed at the
earliest. For the last more than 4 gears the people of the
State has suffered immensely due to tlrc tardg progress
made bg the Stakeholders. To add more to the uoes of
the people, the eisting road has not been maintained
euen to make it a little more comfortable to trauel.
TLrerefore, this Court has been constrained to take
cognizance of tlrc same........"

On 22.03.2023, we directed the parties to consider

viability of the joint venture bid offered by M/s Vilelie Khamo &
Sons along with M/s Chabou & Co, for completing the remaining

stretch of the Highway which is stuck for the last nearly 8(eight)
years.

Learned counsel appearing for the respondent NHIDCL

Mr. S. Borgohain has pointed out a typographical error in the
body of the order dated 22.03.2023, inasmuch as para "k" of
the minutes of the meeting has been erroneously recorded
instead of para "j" of the minutes in this order.
Mr. Borgohain further submitted that it has been wrongly
recorded in the said order that the proposal to consider the
viability of the joint venture bid submitted by M/s Vilelie Khamo
& Sons along with M/s Chabou & Co. was put forth by NHIDCL.
As per him, this submission was actually made on behalf of M/s
Chabou and Co,
This contention of Mr. Borgohain is noted.
Pursuant to the order dated 22.03.2023, a meeting was
held at the Regional Office of NHIDCL over VC to consider

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viability of the loint Venture Bid submitted by M/s Vilelie Khamo
& Sons along with M/s Chabou & Co. for completion of the
Package III of the Highway connecting Kohima and Dimapur.

The minutes of meeting are reproduced hereinbelow for

the sake of ready reference:

"Natlonal Hiq huaus & Infrastntchtre

Deaelooment Coroo ration Ltd.
Minutes af the Meeti ng for dellberatlon wlth
Contractor on 29, 03. 2O2 3
Minutes of Meetlno
Project : Dimapur- Kohima PKerm

7. Pursuant to the Hon'ble High Court, Gauhati, order dated

22.03.2023 a VC meeting uas held to consider tLe
uiability of the joint uenture bid submitted bU M/ s Viletie
Khamo & Sons along u.tith the M/ s Chabou & Co. in light
of ttte Clause 2.1.11 of the RFP on 29.03.2023 at 01:15
Hrs.
2. TLE list of the participants is placed at Annexure ,A'.
3. The discussion on the deliberation is as undet
i. WP at RO-NHDICL read out the Hon,bte High Court
order of dated 22nd March, 2023 and apprised
that the Court had directed to conduct exerci.se of
consideing the uiabilitg of JV bid submitted bg
M/ s Chabou & Co within Seuen days from the date
of issue of the order.
ii. While the sole bid of the M/ s Chabou & Co has
alreadg been eualuated and presented before the
Hon'ble Court of Guwahati, on 22.03.2022 in
sealed couer.
iii. The Authoriz,ed Representatiues of M/ s Chabou &
Co appised that they haue alreadg submitted tLe
bid of the subject project consideing the estimated
cost of Rs.146.93 Cr uploaded in tLrc NIT, uthich
uas recently been reuised by the Authoitg to
119.72 Cr. As per submission in the High Court.
Further, it tuas mentioned by th.e Authorized
signatory of M/s Chabou & Co. that theu haue no
issues in p roceedinq as per the re uised Contract
Amount of Rs.l19.72 Cr. For the balance works of

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 Dimapur-Kohima Road Package-Ill. Other
conditions laid doun bg tW Chabou & Co uere
not discussed in the meeting" as the Hon'ble High
Court order is resticted to the euoluating the
uiabilitg of the JV of MAR Contractor. The
submission of the M/ s Chabou & Co is annexed
h.ere as Annexure-B.
iu. of Vilelie Khamo & Sons a lonq with
The elioibilitu
M/s Chabou & Co is qualified as per the JV
Credential, tLrc eualuation report is annexed as
Annentre C.
U There utas some tApographical enor as appeared
in the Hon'ble High Court of Guuahati, order dated
22.O3.2023 ullrerein the Court referred the Para "k"
of the MoM dated 22.03.2O23 uhich actuallg
sLnuld be para "j". In this regard the Counsel for
NHIDCL has assured to get the same rectified
through praAer before tte Hon'ble High Court of
Guutahati, on tle next date of heaing.
ul. It has been discussed that the cost at uhich the
M&R Cltttractor has aqreed to take up the ibid
proiect is not market bo.sed uhich can onlu be
obtained throuqh competitiue biddinq. The cost is
ba.sed on the Cunent SoR NPWD 2021 as
recommended bu the AutLnri tu's Enqineer/ GM(P)
Dimapur,
uu. The Coun sel
for NHIDCL mag request the Hon'ble
High Court and obtain the confirmation of the
freezing tLrc cost based on Sub-Para (iii) aboue from
the Hon'ble High Court of Guuahat| at uhich tle
ibid project can be giuen to the M&R Contractor.
The amount of NIT is Rs.146.93 Cr uhich uas
reduced to 119.72 Cr a r excludinq the utorks
alreadu completed duinq inteim peiod bu ilte
preuious EPC Contractor uith maintenance
component.
The meeting ended u-tith ttre uote of thanks to
all. "
(Emphasis supplied)

The officials at NHIDCL headquarter considered the

conclusions drawn in the meetlng dated 29.03.2023 and have

-+ Page I 4
resolved that the above proposal of the RO Kohima is not
acceptable.
It may be noted that in the intervening period, a fresh
NIT has been floated by the NHIDCL for completion of the
Package III of the Kohima to Dimapur Highway. The project
cost quoted in the fresh NIT is Rs.146.93 crores. As per the
deliberations held (supra) on 29.03.2023 at the RO, the Joint
Venture Bid of M/s Vilelie Khamo & Sons along with M/s Chabou
& Co. had agreed to complete the project at a cost of Rs.119.72
crores. Thus, the offer made by the firms in loint Venture is
almost Rs.27 crores lower than the project cost quoted in the
fresh NIT.
Para No.6 of the letter dated 30.03.2023 whereby, the JV
proposal has been turned down does not assign any reasons
whatsoever for this decision.
In the backdrop of the facts noted above, this Couft is
not in the least convinced to approve the pefunctory and
mechanical rejectionof the pefectly valid, viable and well
evaluated J.V. proposal for completing the Highway which
connects the sector Kohima-Dimapur and is of great public
importance which provides the passage not only to the citizens
of Nagaland but also to the citizens of Manipur. We feel that
this pedantic approach of NHIDCL officials if allowed to prevail,
may lead to a situation that construction of this important
stretch of Highway may be delayed further without any hope
that it would be completed in the near future.
It may be noted that 2(two) stretches of the Highway are
almost complete. If the third stretch remains incomplete, the
warranty of the completed stretches may lapse without the
Highway becoming fully functional.

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 This Court having shown its concern to take up the highly
sensitive matter in the PIL (Suo Motu) jurisdiction cannot turn a
blind eye and allow such pathetic state of affairs to prevail
indefinitely.
During the course of arguments, Mr. Ajay Batra, General
Manager, NHIDCL present in the Court stated that existing two
Lane section of the Highway which is being maintained by M/s
Chabou & Company is in a pefect road worthy condition and
that the public using this section would not be inconvenienced
owing to of the 4 lane project. He tried to
non-completion
explain that the Project cost in the fresh NIT has been
enhanced because the specifications of the road have changed
on account of various factors including cost escalation by efflux
of time and the additional requirements under G-20 obligations.
The submlssions so made would clearly imply that the
work of maintenance and repairs being undertaken by M/s.
Chabou and Co. on this difficult section of the road has been
found satisfactory by the NHIDCL officials stationed at the
Headquarters so much so that even the 2 lane road is projected
as sufficient to serve the purpose of effective transportation.
During the course of hearing, this Court posed a query to
the General Manager, NHIDCL that whether it would be possible
for the Corporation and its officials to give an assurance that
the important road Project, which is already delayed by 8(eight)
years, would definitely be concluded within the stipulated period
assuming that a successful bid is received in the fresh NIT to
which, Mr. Batra frankly conceded that looking to the past
history, the NHIDCL is not In a position to give any such
assurance.

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 This Court is further apprised that the period of
completion prescribed under the freshly lssued NIT is 2(two)
years.

The preceding events indicate that the work on this

section of the road was staded in the year 2016 but has not
been completed despite all endeavours of the NHIDCL. The
materials available on record would indicate that two previous
contractors, namely M/s. Gayatri Projects Ltd. and M/s Oasis
Techno Construction Ltd. failed to complete the Project and
abandoned the work which is stuck for the last nearly 8(eight)
years. There seems to be no possibility of completion of the
Highway in the near future as per the words of the G.M. Mr.
Batra.

It cannot be denied that the maintenance and repair

works being undertaken by M/s. Chabou & Co. have ensured
that the two Lane section of the road is presenfly functional and
motorable.
The statement of the G.M. of the NHIDCL, indicates that
despite all odds, M/s. Chabou & Co. has managed to maintain
the Two Lane Highway in a condition which is acceptable to the
NHIDCL officials as a stopgap substitute for the Four Lane
Highway which fact, verifies the credentials of M/s. Chabou &
Co. in executing the work in question.

It is quite possible that M/s, Chabou & Co. not be

satisffing the required parameters of a full fledged contract in
its individual capacity but lts competence to construct the road
cannot be doubted as the firm/company has been maintaining
the road to the satisfaction of the NHIDCL officials for the last
nearly 2(two) years.

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 However, if at all the Two Lane section was an
acceptable solution, then there was no need whatsoever for
undertaking the entire Project of Four Laning.
Mr. J. Shequi, learned counsel representing
the M/s
Chabou & Co. submitted that the two firms/companies in Joint
Venture have agreed to complete the project of Four Laning of
the Phase III at the rate of Rs.119.72 crores even with changed
specifications without accounting for the cost escalations which
have taken place in the intervening period.

In this background and keeping in view the fact that the

completion of the Four Lane Highway project in question is of
paramount importance for the development of the States of
Nagaland and Manipur and as the delayed completion thereof is
causing huge inconvenience to the public at large and is also
having an adverse impact on the public exchequer, we feel that
the stand taken by the NHIDCL in its letter dated 30.03.2023
and as conveyed orally by Mr. Batra that the remaining work
should be completed by resorting to a fresh NIT, is absolutely
unjustified, unreasonable and is thus rejected.
Consequently, the conclusion arrived at in the meeting
held between the officials of the NHIDCL and the Contractor on
29.03.2023 that the JV bid submitted by M/s Vitetie Khamo &
Sons and M/s Chabou & Co. for completion of phase-Ill of Four
Laning of Dimapur-Kohima Highway is viable at a much lower
cost as compared to the price fixed in fresh NIT provides the
only acceptable solution to the issue at hand. The proposal
dated 29.03.2023 thus deserves to be given a seal of approval
by this Couft. Resultantly, it is directed that a fresh contract in
terms of the deliberations held on 29.03.2023 shall be executed
between the parties. The Project in question shall be got

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completed by awarding the work to the loint Venture Bid of M/s
Vilelie Khamo & Sons and M/s Chabou & Co. The contractors
shall complete the road within the stipulated period in terms of
the contract.
Copy of this order be transmitted through e-mail to the
learned counsel representing the parties.
List before this Bench on 26.04.2023 at 01:15 p.M.

h
JLiDGI) CHIEF JUSTICE

BLIOY

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