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SUPREME COURT OF INDIA
Gyan Sudha Misra, Pinaki Chandra Ghose, JJ.
M/S. SOMA ISOLUX NH ONE TOLLWAY PRIVATE LIMITED – Appellant
Versus
HARISH KUMAR PURI & ORS. – Respondents
CIVIL APPEAL NO. 4611 OF 2014 (Arising out of SLP (Civil) No. 19379/2013)
Decided On : 17-04-2014
(2000) 5 SCC 287 – Referred
(b) Administrative Law – Government Contract – Statutory provisions prevail over terms of contract executed under it – However, once contract is concluded, it cannot be changed by administrative instructions in absence of any statutory violation – Rejection of relocation of Toll Plaza by subsequent order of NHAI not sustainable. (Para 43, 44)
(c) Administration of Justice – Judicial Propriety – Contract matters – High Court stating that it is not venturing into contractual obligations and rights of the parties – Yet nullifying the contract and directing NHAI to take over the project and complete the balance work knowing that NHAI does not execute its projects – High Court also holding appellant-company responsible for delay in execution of project without considering whether NHAI is also even partly responsible for delay – Not justified. (Para 49, 50)
(d) Administration of Justice – Judicial Propriety – NHAI not pleading for nullifying the contract – It only opposed shifting of toll plazas – Appellant company already completing 71% work – High Court after taking undertaking from appellant company, on its own, nullifying the contract without examining the contractual obligations – High Court also missing out that the issue stood concluded by another High Court attaining finality – Constructive res judicata. (Para 52 to 57)
(e) Administrative Law – Government contract – NHAI agreeing to and approving shifting of toll plazas – High Court decision in this regard attaining finality – NHAI later taking u-turn and challenging the shifting of toll plazas – Illegal and arbitrary. (Para 59)
Administrative Law – Government contract – Appellant Company working on BOT basis – Making all investments by arranging institutional finance – Can reap benefits and discharge financial obligations only if project is completed and operated – Nullifying the project after 71% completion without adjudicating on responsibility for delay – Not justified. (Para 66)
Facts of the case:
Appellant Company undertook six laning of high way under agreement with NHAI on BOT basis and completed 71% work.
Company requested for shifting of toll plazas which was agreed to and approved by NHAI.
Shifting of toll plazas getting approval of P&H High Court and attained finality.
After 2 ½ years when new Chairman joined NHAI, it issued show cause against shifting of toll plazas.
This resulted in delay in execution of the project.
High Court of Delhi nullified the contact and issued a number of directions.
Finding of the Court:
Status of the Union of India under the prevailing facts and situation at the most can be treated as that of a facilitator and nothing more than that.
Result: Appeal allowed.
JUDGMENT
GYAN SUDHA MISRA, J. –
1. Leave granted.
2. This appeal by special leave has been filed assailing the order dated 27.5.2013 passed by the High Court of Punjab and Haryana at Chandigarh in C.M.No. 3301/2013 arising out of CWP No. 13848/1998 whereby certain adverse directions to be related hereinafter were issued having grave implication on the contractual rights of the appellant- M/s. Soma Isolux NH One Tollway Pvt. Ltd. (hereinafter referred to as ‘the Concessionaire company’) as it was saddled with a fine of Rs.60 crores and Rs.7 crores to be paid by the appellant-Concessionaire Company and its Director respectively which were to be deposited with the Registrar General of the High Court within one month of the date of the order. The respondent No.6 National Highways Authority of India (shortly referred to as ‘the NHAI’) was further directed to proceed in the matter forthwith and take possession of the Highway project and ensure that collection of toll is deposited in a separate account and the work of repairs of the highway commenced within a week and the work of construction of highway commenced and completed within a month thereafter. The High Court further issued direction that the entire matter relating to the contract, the completion of the work of the highway, collection from tolls without existence of six lanes be enquired into and a report in that regard be placed before the High Court within three months. It was also made clear that the enquiry shall not be construed to be an excuse to delay the construction of the highway. It was further observed that the Chairman, NHAI shall be personally responsible for ensuring that the work of six-laning of the highway between Panipat and Jullunder is completed within six months failing which the Chairman, NHAI would be held personally liable to pay fine similar to the terms imposed on the Concessionaire Company –respondent No.7. The appellant-Concessionaire Company has, therefore, come up to this Court challenging the impugned order passed by the High Court.
3. The substantial questions of law of general and public importance that emerge for consideration in this appeal inter alia may be crystallised as follows:
(i) Whether the directions issued by the High Court which have far reaching consequences against the petitioner/appellant and which directions by a judicial fiat, has the effect of nullifying the terms of the Concession Agreement dated 09.05.2008 defeating the rights and obligations arising therefrom in a Public Interest Litigation while exercising jurisdiction under Article 226 of the Constitution of India is an act of judicial overreach under the garb of public interest?
(ii) Whether the terms and conditions of a concluded contract can be nullified by the High Court by issuing sweeping directions in an ongoing Public Interest Litigation Petition which renders the terms and conditions of the Concession Agreement between the contracting parties redundant at the instance and initiative of the Court itself when such directions has not even been sought by any of the parties to the Public Interest Petition?
(iii) Whether a Bench of the High Court which is seized of a particular dispute would be justified in not taking note of the final judgment and order passed earlier by a co-ordinate Bench settling the said controversy in view of which no direction could be issued by the High Court nullifying the contractual rights of the affected party?
4. In order to appreciate and adjudicate the controversy involved and to put the matter in proper perspective certain factual background may be related which disclose that this appeal by way of special leave petition has its genesis in a writ petition bearing CWP No. 13848/1998 which came to be filed in the High Court of Punjab and Haryana at Chandigarh as a public interest litigation on 25.7.1998 by the respondent No.1 herein Harish Kumar Puri whose son had died in a road accident on 14.5.1996 at Pipli Chowk, Kurukshetra due to the crim
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