:1: IN THE HIGH COURT OF BOMBAY AT GOA MISC. CIVIL APPLICATION NO.789 OF 2009 AND MISC. CIVIL APPLICATION NO.468 OF 2011 AND MISC. CIVIL APPLICATION NO.103 OF 2009 IN WRIT PETITION NO. 470 OF 2006 1. State of Goa, Through its Chief Secretary, Panaji Goa – 403 001. …. Applicant In 1. Mormugao Port Users Association Regs. Office at 1 chase International, First Floor, Fr. Jose Vaz Road, Vasco-da-Gama. 2. Aparant Iron and Steel Private Limited A Company incorporated under The Indian Companies Act, 1956, having office at Dempo House, Campal, Panaji Goa. 3. Goa Carbon Limited, A Company incorporated under The Indian Companies Act, 1956, having office at Dempo House, Campal, Panaji Goa. …. Petitioners V e r s u s 1. Union of India Through its Secretary, Ministry of Shipping, Road Transport and Highways, Government of India, Transport Bhavan, New Delhi-110001. :2: 2. Board of Trustees of Mormugao Port Trust, through its Secretary, A major port constituted under the Major Port Trust Act, having office at Sada Headland Goa-403 804. 3. Natinoal Highways Authority of India, Through its Chairman, G-5/6, Sector 10, Dwarka, New Delhi 110 075. 4. State of Goa, Through its Chief Secretary, Panaji Goa. 403 001. 5. Goa State Rehabilitation Board, Through its Member Secretary, Shram Shakti Bhavan, Patto, Panaji Goa 403 001. 6. Goa State Pollution Control Board, Through its Chairman, Dempo Towers, Patto, Panaji Goa. 403 001. 7. Mormugao Municipal Council Through its Chief Officer, Municipal Building, Vasco-da-Gama, Goa. 8. The Mormugao Port Road Company Ltd., Through its Chairman, C/o National Highway Authority of India, G5/6, Sector 10, Dwarka, New Delhi. … Respondents. AND MISC. CIVIL APPLICATION NO.103 OF 2009 1. National Highway Authority of India through its Project Director Shri P. S. Dodamani, having office at :3: Old Primary Health Center Bldg., Near Dr. Babasaheb Ambedkar Vocational Centre, Headland Sada, Mormugao, Goa 403 802. 2. The Mormugao Port Road Company Ltd., through its Chairman, C/o National Highway Authority of India, G5/6, Sector 10, Dwarka, New Delhi. ..Applicants V e r s u s 1. The State of Goa through its Chief Secretary, having office at Secretariat, Porvorim, Goa. 2. Mormugao Port Users Association, having office at 3. Goa State Rehabilitation Board, through its Member Secretary, Shram Shakti Bhawan, Patto, Panaji Goa, 403 001. 4. The Board of Trustees of Mormugao Port Trust, through its Secretary, having office at Sada Headland, Goa 403 804. 5. Union of India through its Secretary, Ministry of Shipping, Road Transport and Highways, Government of India, Transport Bhawan, New Delhi. 6. Goa State Pollution Control Board, through its Chairman, Dempo Towers, Patto, Panaji Goa. 7. Mormugao Municipal Council through its Chief Officer, Municipal Bldg., Vasco-da-Gama,Goa . …. Respondents :4: Shri S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Government Advocate for Applicant. Shri A. N. S. Nadkarni, Senior Advocate with Mr. H. D. Naik, Advocate for original Petitioners. Shri V. B. Nadkarni, Senior Advocate with Mr. Y. V. Nadkarni, Advocate for Respondent No.2. Shri M. S. Sonak, Advocate for Respondent Nos. 3 & 8. Shri J. Godinho, Advocate for Respondent No.6. CORAM : S. C. DHARMADHIKARI & F. M. REIS, JJ. DATE : 4 th MAY, 2011. P. C.:- The Misc. Civil Application by the State of Goa prays for the following reliefs : (a) The order dated 16/04/2007 and order dated 28/11/2007 be modified and/or recalled so far as stretches of land from Ravindra Bhavan to Sada Junction as shown in letters A-A-A-A in the plan at Exhibit E. (b) This Hon'ble Court be pleased to extend time by another 6 months to hand over the stretch of land from 14.45 km to 14.14.85 km in Phase II to NHAI. 2. The application is presented on 23rd September, 2009 and it is urged that the Writ Petition was filed seeking directions to complete the work of National Highway – 17B :5: from Gandhinagar to Sada junction within a reasonable period by rehabilitating the affected families. 3. It is stated that NH-17B was to be constructed in a length of 18.30 kms from Verna Junction on NH-17 to Sada junction near Mormugoa Port Trust (MPT). Out of the said 18.3 kms, the work from 0.00 kms to 13.10 kms i.e. from Verna junction to Varunapuri junction was already executed. The Writ Petition sought for completion of the balance stretch of road of 5.20 kms from 13.10 kms to 18.30 kms. 4. Upon the affidavit that was filed in this Writ Petition, the Court noted that the work would be completed in four phases. The structures noted were 41 in Phase I, 177 in Phase II and 78 in Phase III. The occupants of these structures were to be rehabilitated or compensated as per the policy to be framed by the Goa State Rehabilitation Board. It is further submitted that the land in Phase I would be handed over to NHAI within a time frame of three months and as regards lands within Phase II and Phase III on account of resettlement of the occupants, time period of 18 months would be required. As regards the last Phase, it was submitted that technical feasibility of the construction of road in that area is first required to be explored. :6: 5. The affidavit was filed on behalf of the State Government on 2nd April, 2007 in the Writ Petition indicating further progress. The Writ Petition was placed before a Division Bench of this Court on 16th April, 2007 and the directions of the Division Bench are then reproduced. The final order in the Writ Petition dated 28th November, 2007 is then referred to. After the order passed on 21st August, 2008, it was pointed out that at the time of the order dated 21st August, 2008, the total stretch of 4.02 kms was handed over to NHAI and different stretches as set out in para 11 of the application is not handed over. It is stated that for rehabilitation of 256 project affected persons (PAP's), the work for construction of 4 buildings was already commenced. It is also part of the record that for rehabilitation of 40 PAP's belonging to the fishermen community, the MPT was to construct a building in the land identified as Joshibhat for their rehabilitation. It is submitted that this application is now necessitated for modification of the order dated 16th July, 2007 and dated 28th November, 2007 in view of the subsequent developments. 6. The subsequent developments are referred to in paras 14 and 15 and they are namely that Legislative :7: Assembly passed a resolution on 22nd August, 2008 that the four lane road from Verna to Sada under construction be connected to the portion at berth No.9 only and four laning of road up to Sada connecting berth No.1 should be cancelled as this would dislocate hundreds of houses in Sada. In view of this resolution passed by the House, a meeting was held on 12th December, 2008 which was attended by the Chief Minister, Revenue Minister, and other senior Government officials. It was decided to convene a meeting with NHAI to resolve the issues arising out of the resolution passed by the Assembly and order passed by the Court earlier. After referring to the road alignment and a plan Annexure – E to this application, it is stated that the matter was taken up with the Ministry of Road Transport and Highways, Union of India and Minister has informed the Chief Minister of Goa that directions are being issued to NHAI to remove the section of road between Ravindra Bhavan and Sada junction from the scope of the project. Subsequently, the State of Goa has informed the NHAI to issue appropriate instructions to the concerned officials in view of the letter of the Union Ministry. It is in these circumstances, the State Government has decided that NH-17B should be terminated at Ravindra Bhavan and that the same should not be extended from :8: Ravindra Bhavan to Sada junction. The NHAI according to this application had agreed that the proposed NH-17B from Ravindra Bhavan to Sada Junction should be removed from the scope of the project. That is how the application is made to modify the orders passed earlier. It is further stated that substantial work has been completed and the stretch of land identified in red in Phase II will have to be handed over by rehabilitating the PAP's. The buildings being constructed for rehabilitation are in their final stages and require about three months for completion and that is how prayer clause (b) is worded. 7. To this application after its copy was received, an affidavit has been filed by MPT and in the affidavit it has been stated that despite the clear directions of this Court, the State of Goa has filed the present application for modification/recall of the orders. It is stated that this application is not maintainable. It is stated that in respect of Phase IV ( Chainage 16.00 to 18.30 kms ), 1.95 kms stretch from Desterro to Prince Bakery has already been handed over by the State Government to NHAI in pursuance of the orders of this Court and only the last stretch of 0.350 kms of encroached land near Sada junction is yet to be handed over :9: to NHAI. It is stated that MPT has handed over Joshibhat land for construction of 42 rehabilitation units for fishermen staying in Phase II and Phase III of the proposed road only on 21st July, 2008 and thereafter appropriate tendering process has been carried out and the construction was expected to be completed according to this affidavit by 31st May, 2010. It is stated that some of the 42 fishermen are staying in Phase III between Ravindra Bhavan to Desterro Culvert and it appears that the State Government is proposing that even this stretch falling in Phase III (chainage 15.30 to 15.75 kms ) should be deleted. It is, therefore, contended that substantial work has been carried out in pursuance of the orders passed by this Court including for rehabilitation of the affected parties. It is contended that NHAI has completed tendering process for completion of entire 5.2 kms of NH -17B as a 4-Lane Road, including the stretch of Phase IV from Ravindra Bhavan, Baina to Sada junction. The details of the contract are set out and it is stated that the State Government has allowed the encroachers of Phase III to continue when their cost of rehabilitation has been fully paid by MPT to the State Government. Stating thus, this application is opposed by the MPT. :10: 8. It is also opposed by the National Highway Authority of India. It is stated that last stretch of the said Phase IV, which is about 350 mts length, remains to be handed over to the Respondent No.3. The Respondent No.3 NHAI has entered into an agreement with M/s KMC Construction Ltd., and the details of the said agreement are mentioned in the affidavit in para 3. It is stated that the NHAI has not made any commitment to the Applicant. It is bound by the orders of this Court dated 16th April, 2007, 28th November, 2007 and 21st August, 2008. Stating thus and pointing out that balance portion of the four lane highway cannot be de-linked from the stretch from Ravindra Bhavan to Sada junction as it is necessary for proper road connectivity, it is submitted that the application be disposed of. 9. The original Petitioners have also opposed the request made by the Applicant/State by firstly pointing out that the order of the Court is final and binding. There is no challenge thereto. The orders of this Court cannot be altered or set aside by the State Legislature by passing a resolution. The resolution passed by the Government cannot be said to be a law. In these circumstances, that resolution is of no consequence. It is pointed out that the application for :11: extension of time has already been made earlier and now another application is made for extension of time. There are no subsequent events or changed circumstances. The letter of the Minister of Road Transport, Government of India, refers to a direction by the Central Government to NHAI. There is no direction by the Central Government to the NHAI and even NHAI has not made any commitment nor given any assurance to the Applicant. Instead it has proceeded with implementation of the orders and directions of this Court and with the construction of the national highway. The importance of the project should be borne in mind and this Court should reject the present application. 10. There are other affidavits filed but suffice it to note that in the affidavit filed by the MPT which is affirmed on 12th April, 2010, it is specifically contended that it is not possible for MPT to have proper four lane internal connecting road between Gate No.1 and Gate No.9 due to limitations of land. It has also been pointed out that the steps have been taken in respect of last 350 mts of Phase IV. MPT has informed the State Government that it will make immediate payment of the entire cost of construction of the rehabilitee units for Phase IV, including compensation for encroachers :12: below 18 square metres in respect of Phase IV, on demand being raised by Goa State Rehabilitation Board (GSRB). Another affidavit is filed on behalf of the said MPT and affirmed on 20th October, 2010. What has been stated is the construction of 42 units at Joshibhat has been substantially completed and application for occupancy certificate has been forwarded to the Mormugao Planning and Development Authority. The occupancy certificate will thereafter be obtained from the MMC. The housing units are ready and GSRB can allot the same to the PAP's by 15th November, 2010. It is stated that 256 rehabilitation units constructed at Sada by PWD at an tendered amount of Rs. 11.19 crores and funded by MPT for the PAP's of four lane road have been completed nearly 8 months ago however handing over of the same to the respective PAP's is yet to be taken up by GSRB. Thus there has been tremendous delay in allotment of 256 units constructed by PWD, State Government at headland Sada, for PAP's by the GSRB. The land for the NH 17B was acquired for the public purpose of constructing public highway by an award of 1981 and though the land was physically acquired in 1997, the State Government allowed encroachments on the public land to continue. Citing such and other reasons, it is stated that request for modification or :13: recall of the orders be rejected. 11. The Applicant-State has filed rejoinder and further affidavits and while not disputing that the work of rehabilitation of PAP's has been undertaken and completed, it is stated that there were some defects noticed in the construction. Moreover, sewage connection and water connection is to be provided. There are other works including electricity connection and it was stated that electricity connection to the individual unit has not been provided. It is stated that balance payment of Rs.2.69,49,767/- has to be made by MPT, out of which 1.50 crores have been paid to PWD by cheque on 6th April, 2011. The GSRB has made provisional allotment of 98 dwelling units to 98 PAP's of Phase I and Phase II. Even sewage work is completed and 19 PAP's have not taken the provisional allotment stating that they are fishermen and should be accommodated along with other fishermen and this claim is being verified. There are certain issues raised with regard to the workmanship of the construction made for PAP's. The completion certificate has to be obtained from PWD so as to enable the MPDA to facilitate in obtaining of occupancy certificate from MMC. It is stated that as soon as occupancy certificated is obtained, the PAP's :14: will be shifted to their allotted tenaments and further steps will be taken to demolish the vacated structures and hand over possession to NHAI. The State therefore requested for six months to complete the entire process by its affidavit dated 21st April, 2011. 12. It is on this material, we have heard Shri Kankak, learned Advocate General appearing for the State, Mr. V. B. Nadkarni, learned Senior Counsel appearing on behalf of MPT. We have also heard Shri Mahesh Sonak for NHAI – Respondent No.3 and Mr. A.N.S. Nadkarni, learned Senior Counsel for original Petitioners. 13. With their assistance, we have perused the application and the Annexures thereto so also affidavits on record. Firstly, we do not deem it fit to enter into any controversy as to whether exchange of letters between MPT and State in relation to the reliefs claimed in the application amounts to interference with the course of justice. We think that controversy generated by the letters and the contents of the affidavits could have been avoided as both MPT and State of Goa are public bodies. They should avoid intemperate and harsh language and act in public interest rather than indulge in making allegations against each other. We leave this :15: matter there. 14. Equally we do not deem it necessary to decide any larger controversy as to whether the application of this nature and particularly seeking relief of recall and modification of orders dated 16th April, 2007 and 28th November, 2007 can be made. Whether the application of the State is barred by the principle of finality of orders and whether concluded issues can be reopened by filing a Misc. application or not need not be decided on peculiar facts of this case. 15. Therefore, we proceed on the basis that the application can be filed and argued. However, we are of the view that the application does not indicate any reason other than the letter dated 23rd September, 2009 and the Resolution of the Legislative Assembly dated 22nd August, 2008 for seeking relief of recall or modification of the orders in question. Firstly, all orders of which modification is sought were passed after hearing both sides. The first order is passed as early as on 16th April, 2007 and order disposing of the Petition dated 28th November, 2007 is merely taking note of consent arrived at by the parties. This Court proceeded on the basis that the project being of public and in national :16: interest, the statutory bodies and authorities have agreed and are proceeding in right earnest bearing in mind that the project has to be completed expeditiously. Therefore, this Court in order to facilitate public bodies in early completion of the project passed orders and directions on the statements made by them and with their consent. It is too late in the day today to seek recall or modification of the orders of this Court and that too on the ground that there are subsequent events or changed circumstances. The resolution of the State Assembly dated 22nd August, 2008 has been bought to our notice. That Resolution according to learned Advocate General takes note of the fact that the road for a particular stretch is not longer needed. We are of the view that there is substance in the objections of the learned Senior Counsel appearing for the original Petitioners that this Resolution can hardly affect the implementation of the Court orders. Even the State has not understood it in the said manner. The correspondence carried out with the Minister of Road Transport and Highways, Government of India, proceeds on the basis that Court orders are binding and conclusive and that it also understood that by mere Resolution of the Assembly, the implementation of the orders cannot be in any manner stopped or halted midway. Hence, it is decided to :17: approach the ministry concerned in the Union of India and NHAI. That is how the Chief Minister met the Union Minister and preceding thereto was letter dated 6th June, 2009. Based on this letter, on 19th June, 2009, the Union Minister wrote a letter to the Chief Minister of Goa, which reads thus :- “MINISTER OF ROAD TRANSPORT & HIGHWAY INDIA D.O. No.NH-6/12014/30/2008-Goa 19th June,2009 Dear Kamatgee I was a pleasure to meet you on 12th June, 2009 at New Delhi. The meeting provided us an opportunity to discuss the status of the ongoing projects in the State of Goa. I appreciate the concern expressed by you in your letter No.CM/GOI/2008-09/105 dated 6th June, 2009 regarding construction of the four-lane road between Rabindra Bhawan and Sada Junction of NH-17B under the Port Connectivity Project and the Goa State Assembly's resolution that this stretch be cancelled from the scope of the project. As requested by you, I am directing NHAI to remove the section of road mentioned above from the scope of the project and provide all necessary cooperation to the Government of Goa. In pursuance of the above decision, I suggest that the Government of Goa takes proper legal recourse for an early settlement of the matter before the High Court. I took forward to the Government of Goa signing the State Support Agreement at an early date. With regards, Yours sincerely, Sd/- ( Kamal Nath ) Shri Digambar Kamat, Chief Minister of Goa, Panaji Goa.” :18: A perusal of the same would reveal that even the Minister merely assured that the cooperation will be given and that directions would be issued to NHAI to remove the section of road. However, the Applicant has not placed on record any such directions issued by the Central Government to NHAI. Therefore, there is no agreement or direction to alter or change the alignment of the road. 16. We are of the opinion that the modification or recall of the orders passed by this Court is in fact seeking alteration or change in the alignment of highway. That alignment has been agreed by the parties and on the basis of the same, the Court passed orders and issued directions. These orders are final, conclusive and binding. They have to be implemented within the stipulated or extended time. The Court does not condone the delay in execution and implementation of its orders for the asking. The explanation for the same should be sufficient. It must be reasonable and proper. Else, the act is termed as breach or violation of the order. It is clear from the records. Therefore, unless there is a further agreement to change or alter the alignment of the national highway, it will not possible to grant request of the State Government. There is no such agreement which is :19: evident by the affidavits placed on record by the MPT and NHAI. We cannot ignore the contents of these affidavits and the Authorities are bound by these statements. The statements being made on affidavits filed in Court, the authorities are equally bound by their commitments to the public at large and to the higher authorities to whom they are answerable in terms of the statutory provisions. In these circumstances, without any consent to change the alignment of the road in question and finding that substantial progress has been made from 2007 till date, we will not be able to grant the request made vide prayer (a) of this application. The application to that extent is rejected. In this behalf we invite the attention of parties to the following observations of the Hon'ble Supreme Court in the case of Bigyan Kumar and others V/s Union of India and others, reported in AIR 1988 SC 1025 :- “7. We could part with the matter by recording our serious concern and disapproval of the growing conduct of parties and public officers in particular of ignoring the directions of the Courts and the multiplying instances of confrontation. The Court, including the apex one, is a part of the State and is a built-in :20: mechanism of the Constitution to administer justice in accordance with law. For discharging that duty, the Court has got to adopt an attitude of critical assessment of situations connected with litigation