Tolum Tapam and 90 Ors v. The State of Ap and 14 Ors

JUDGMENT & ORDER (Oral) Date : 14.06.2024 Heard Ms. N. Danggen, learned counsel for the petitioners. Also heard Mr. G. Tarak, learned standing counsel for the Rural Works Department (RWD) appearing for the State respondents and Mr. T. T. Tara, learned counsel appearing for the intervenors in WP(C)171(AP)2024.

¶2As the issues involved in these two writ petitions are similar, the writ petitions are taken up together and disposed of by this common order.

¶3By instituting these writ petitions, the petitioners have put to challenge the impugned tender, E-Procurement Press Notice, dated 13.03.2024, issued by the Executive Engineer/DPIU, Laaying Yangte Division, ARRDA, RWD, Kurung Kumey District, inviting item rate bids in electronic tendering system for construction of roads under PMGSY including their maintenance for five years from the eligible contractors registered in appropriate class in the District of Kurung Kumey for 26 (twenty six) number of packages, on the ground that the impugned tender has been issued in violation of the PMGSY Scheme and Guidelines.

¶4The case of the petitioners, shorn of unnecessary details, is that they are the land owners of different blocks within the District of Kurung Kumey. The lands are their ancestral lands in their respective villages.

¶5The Government of India, Ministry of Home Affairs, Department of Border Management, vide letter dated 09.01.2024, has accorded approval and sanctioned the project proposals submitted by the State of Arunachal Pradesh Page No.# 26/36 for an amount of Rs. 2205.19 crores for construction of roads under PMGSY under Vibrant Villages Programme. Out of total 105 road projects for state of Arunachal Pradesh, 27 roads are approved for Kurung Kumey District and the petitioners are concerned about 26 (twenty-six) packages.

¶6The Executive Engineer/DPIU, Laaying Yangte Division, ARRDA, RWD, Kurung Kumey District, issued the impugned E-Procurement Press Notice, dated

13.03.2024, inviting item rate bids in electronic tendering system for construction of roads under PMGSY including their maintenance for five years from the eligible contractors registered in appropriate class in the District of Kurung Kumey for 26 (twenty six) number of packages. The petitioners are aggrieved of the impugned Tender as the same has been issued without following the PMGSY Scheme and Guidelines.

¶7The grievances raised in the present proceedings is that the respondent authorities have prepared the DPR without adhering to the guidelines and allegedly shown to have obtained the Land donation from some persons which includes the lands of the petitioners. The PMGSY Scheme and Guidelines mandates that it is the responsibility of the State Government and the District Panchayat to ensure that lands are available for taking up the road projects under the Vibrant Villages Programme under PMGSY scheme and a certificate that the land is so available must accompany the proposal for each road work. The transect walk must be conducted. The respondent authorities have failed to follow the requirements before the project of road constructions are taken up. The petitioners have submitted various representations before the authorities. However, same have not been considered.

¶8Ms. N. Danggen, learned counsel for the petitioners, while referring to the PMGSY Scheme and Guidelines, particularly, Clause-6.12 and 6.13, submits that Page No.# 27/36 it is the responsibility of the State Government/District Panchayat to ensure that the lands are available for taking up the proposed road works. A certificate that the land is available must accompany the proposal for each road work. Though the PMGSY does not provide funds for land acquisition, it does not mean that the acquisition cannot be done by the State Government at its own cost. The State Government is also given liberty to lay down guidelines for voluntary donation, exchange or other mechanisms to ensure availability of land. Clause-

6.13, amongst others, provides that as a part of PMGSY process, it may include a simple, non-formal "transect walk" to be organised by the Assistant Engineer at the time of preparation of DPRs. The Panchayat members and the Junior Engineer would participate and in case of forest land, the Officials of Forest Department should be involved. She submits that such requirements under the PMGSY Scheme and Guidelines have not been complied and without following the said guidelines, such schemes for the project cannot be implemented under the Vibrant Villages Programme.

¶9Ms. Danggen, learned counsel, referring to the documents annexed in the writ petitions as well as affidavit-in-opposition filed on behalf of the State respondents, submits that there are serious discrepancies in the said documents as the land agreement has been executed on 19.02.2024, whereas, the DPR was prepared on 29.08.2023 and the approval was accorded by the authority on

09.01.2024. She submits that as per the Guidelines, the DPRs has to be preceded by land availability certificate, transect walk and other land documents. While referring to the Land Donation Agreement, she submits that either there is no signature of the person who had alleged to have donated the land or many signatures have been forged. Therefore, she submits that not only in not following the guidelines, but the documents which have been forged Page No.# 28/36 cannot be relied on for execution of projects which are beneficial to the common people in the area. The petitioners are the land owners of the said projects and they have been kept on dark which resulted in deprivation of their rights. She further submits that the documents annexed and relied by the State respondents, i.e. dated 19.02.2024, which are anterior to the DPRs and the technical sanctions, as these documents are to be prepared before the DPRs and technical sanction is accorded. Thus, she submits that impugned NIT may be set aside and a direction may be given to the respondent authority to re-do the entire process strictly as per the PMGSY Schemes and Guidelines.

¶10On the other hand, Mr. G. Tarak, learned standing counsel for the Rural Works Department, while referring to the documents annexed to the affidavit-in-opposition, submits that as per the Schemes and Guidelines of the PMGSY, transect walks have been conducted on various dates before the DPR was prepared. The DPR accompanied by Transect Walk and other required documents was submitted and thereafter, technical sanction was accorded. He has also relied on the land donation agreement signed by different persons to show that the lands have been donated by the owners of the lands for the road projects in the different locations within the District of Kurung Kumey. He submits that since the required action has been taken in terms of PMGSY Scheme and Guidelines and since the project is of national importance under the programme of Vibrant Villages Programme, the process of impugned tender may be allowed to be completed and implement the project for interest of the public. He further submits that the writ petitions are not maintainable as the issues involved as to whether the lands belong to the petitioners or to the persons who have donated by signing the agreements, is purely a disputed question of facts, which this Court may not embark on to decide as the same is Page No.# 29/36 beyond the scope of writ jurisdiction.

¶11Mr. G. Tarak, learned standing counsel has relied on the following judgments in support of his submissions to project that while exercising its extraordinary writ jurisdiction under Article 226 of the constitution of India, the High Court does not adjudicate hotly disputed question of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable and also to project that in a tender matter normally the High Court should not interfere as it effects the public interest in implementation of the public project.

(i). Subhas Jain vs. Rajeshwari Shivam & Ors., in Civil Appeal No. 2848 of 2021.

(ii). NG Projects Limited vs. Vinod Kumar Jain, in (2022) 6 SCC 127.

¶12Mr. T. T. Tara, learned counsel for the intervenors, submits that the writ petition is not maintainable due to non-joinder or misjoinder of necessary parties. He submits that non-joinder or misjoinder of the parties amounts to suppression of material facts. He submits that since the bidders who have submitted their bid pursuant to the impugned tender dated 13.03.2024 have not been impleaded as party respondents in these proceedings and as such, non-impleadment amounts to suppression of material facts. Therefore, he submits that the writ petitions may be dismissed on the ground of non-joinder and misjoinder of necessary parties as well as suppression of materials facts.

¶13Anxious consideration has been extended to the submissions of the learned counsels for the parties and perused the materials on record.

¶14As noted above, the Government of India, Ministry of Home Affairs, Department of Border Management, vide dated 09.01.2024, has accorded Page No.# 30/36 approval and sanctioned the project proposals submitted by the State of Arunachal Pradesh for an amount of Rs. 2205.19 crores for construction of roads under PMGSY under Vibrant Villages Programme. Out of total 105 road projects for State of Arunachal Pradesh, 27 (twenty-seven) roads are approved for Kurung Kumey District and the petitioners are concerned about 26 (twenty-six) packages. The approval/sanction has been accorded subject to the fulfilment of following conditions:

(i). Latest SOP related to PMGSY issued by MoRD shall be followed while implementing the Road projects, including any amendment(s) in the SOP issued from time to time.

(ii). Approval of Competent Technical Authority for technical feasibility of the project.

(ⅲ). Reasonability of rates of the items/ projects proposed shall be ensured.

(iv). For each work/project, design, specifications and cost will be as per the norms approved by the Competent Authority.

(v). Assets created under VVP shall be created only on land fully owned by the State/ Central Government.

(vi). Necessary statutory clearances such as, forest, environment etc. as applicable shall be taken by the State.

(vii). There shall be no overlapping of works/projects approved under the VVP with any other works/projects (on-going/proposed) under any Central/ State Government schemes. Further, it shall be ensured that amountsanctioned shall be utilized only for the purpose for which it has been sanctioned. Page No.# 31/36

(viii). Assets created under VVP shall be maintained by State/Localgovernment, as per the requirement and entire operating expenditure formaintenance of such assets shall be borne by the State government.

(ix). State must ensure that the payment to Cement Concrete roads is made only after verification of target strength achieved after 28 days based on cores taken from the pavement as per MoRD specifications.

(x). State shall ensure installation of GPS system in key machinery and equipment engaged during execution of road works under VVP, in terms of instruction issued by NRIDA vide letter dated 31st January, 2022. These works will not commence before the machineries are installed with GPSVTS.

(xi). State shall also ensure verification of quality control register and uploading of the same on OMMAS in terms of instructions dated 13th January 2022 of NRIDA.

(xii). State should ensure Quality of materials as per IRC guidelines for bothFrost as well as non frost areas.

(xiii).Bitumen should be purchased from IOC/HPCL/BPCL.

(xiv). No escalation of cost will be permitted at any point.

(xv). Compliance with GFR-2017, MoF's orders, MHA's and CVC's guidelines issued from time to time."

¶15On careful consideration and perusal of the records goes to show that the requirement under the PMGSY schemes and Guidelines appears to have not been followed properly. It is revealed from the record that the DPR was prepared on 29.08.2023 and the approval and sanction was accorded on Page No.# 32/36

09.01.2024, whereas the land Donation Agreements and MOUs have been executed on 19.02.2024.

¶16The learned counsel for the petitioners has brought on record the discrepancies of the documents relied on by the State respondents. Though the State respondents have attempted to show that the Transect Walks as well as other requirements like Land Donation Agreement have been complied with by following the PMGSY Schemes and the Guidelines. On Perusal of the said documents, it reveals the contrary, with that of the requirements provided under the PMGSY Scheme and Guidelines.

¶17It is noticed that one amongst all, the conditions of sanctioning the project proposals under Vibrant Village Programmes is that the latest SOP related to PMGSY issued by MoRD shall be followed while implementing the road project including any amendments in the SOP issued from time to time.

¶18Clause 6.12 and 6.13 of the PMGSY Scheme and Guidelines provides which is reproduced hereinunder: "...6.12. It will be the responsibility of the State Government / District Panchayat to ensure that lands are available for taking up the proposed road works. A certificate that Land is available must accompany the proposal for each road work. It must be noted that the PMGSY does not provide funds for Land Acquisition. This does not however mean that acquisition cannot be done by the State Government at its own cost. The State Government may also lay down guidelines for voluntary donation, exchange or other mechanisms to ensure availability of land. The process of making land available for the road works should sub-serve the common good and also be just and equitable. The details of land made available should be reflected in the local land records to avoid dispute.

6.13. It may be that road works are sometimes held up because at the time of preparation of DPR actual availability of land was not investigated or because local Panchayat was not taken into confidence about the proposed alignment and disputes subsequently arose. As part of the PMGSY process, all States may include a simple, non-formal "transect walk" to be organized by the Assistant Engineer at the time of preparation Page No.# 33/36 of DPRs. The Panchayat Pradhan, local patwari and the JE would participate. Forest Department officials would be included where forest land is likely to be involved."

¶19Bare reading of the above 2 (two) clauses, which regulates the present project under the Vibrant Villages Programme, goes to show that a certificate that a land is available must accompany the proposal for each road work. The State may lay down guidelines for voluntary donation exchange or other mechanism to ensure availability of land. It also provides for, amongst others, Transect Walk to be organised by the Assistant Engineer at the time of preparation of the DPR.

¶20In the present case, though the learned State counsel has attempted to show that Transect Walks were conducted much before the DPR was finally prepared, it does not reveal exactly on which date the Transect Walks were conducted and whether it was as per the requirement of scheme is not clear, except mere mentioning in the affidavit.

¶21This Court would profitably refer to the settled proposition of law that if statute provides for a particular act to be done in a particular manner, it has to be done in that manner alone and none other. In other words, if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. (Taylor vrs. Taylor: First adopted by Judicial Committee Nazir Ahmed vrs. King Emperor, followed by the Hon'ble Supreme Court and reiterated in Dipal Barbaria' case reported in (2014) 3 SCC 502).

¶22Admittedly, the project was approved/sanctioned on 09.01.2024 based on the DPRs prepared by the Department and submitted by the Government of Arunachal Pradesh and the Land Donation Agreements have been made on Page No.# 34/36

19.02.2024. The scheme and the guidelines require that the Transect Walk, land donations and other requirements have to be preceded to DPRs. However, in the instant case, except to claim that the Transect Walk was conducted prior to the DPR, no other such requirement as provided in the guideline is shown to have been followed.

¶23Having regard to the maintainability of the writ petitions, on the ground of non-joinder or misjoinder of necessary parties and suppression of material facts, this Court is of the view that since the issue raised by the petitioners would not cause prejudice to the intervenors, who claims to have participated in the tender process, they seem to be not a necessary party. In the facts of the case, the petitioners would not know who are the bidders unless the tender is completed or for that matter, unless the petitioners they themselves are the bidders. The issue involved in these present proceedings is as to whether authorities have followed the scheme and guidelines of PMGSY before preparation and the sanction of the project under the Vibrant Villages Programme, to which this Court has already answered above. Thus, there is no question of suppression of any material facts and as such, submission of the learned counsel for the intervenors is considered for rejection.

¶24So far as submission of learned State Counsel on disputed question of facts that this Court would not enter into such issue, there is no question of entering into the disputed question of facts. This Court is not entering into the alleged disputed question of facts, which sought to be projected. It is true that whether the petitioners are owners of the land or the persons who have donated the land for the project are the owners, would not be an issue to be deliberated under the writ jurisdiction. For the sake of repetition, the issue involved in these present proceedings is as to whether authorities have followed Page No.# 35/36 the scheme and guidelines of PMGSY before preparation of DPR and the sanction of the project under the Vibrant Villages Programme which this court has answered, hereinabove. Thus, disputed question of facts, if any, are not been gone into and would not go into by this Court and as such, the case of Subhas Jain (Supra) relied on by learned Standing Counsel is not applicable. In view of the above submissions, raising the maintainability on the ground of non-joinder and misjoinder of parties as well as suppression of materials facts and also the disputed questions of facts are rejected.

¶25The case of NG Projects Limited (Supra), relied on by learned Standing Counsel, is also not applicable as the Hon'ble Supreme Court has held that that in a tender matter normally the High Court should not interfere as it effects the public interest in implementation of the public project and there is no absolute bar in exercising writ jurisdiction in tender matter. It all depends on facts and circumstances of each case.

¶26The allegation of forgery fervently urged by the learned counsel for the petitioners is also equally cannot be gone into in the present proceedings as the petitioners have the remedy under the law if there is any forgery committed with regard to any documents.

¶27As noted above, this Court finds that the mandates under the scheme and guidelines of PMGSY for implementation of the project have not been followed in its letter and spirit.

¶28Having considered that the State respondents have failed to follow the required conditions under the PMGSY schemes and guidelines for implementation of the project under Vibrant Villages Programme, I am of the considered view that the respondent authorities deserve to be directed to consider the grievance raised by the petitioners and to follow the mandate of Page No.# 36/36 the scheme and guidelines of the PMGSY.

¶29In view of the discussions made hereinabove, I am of the considered view that the present writ petitions can be disposed of with a direction to the petitioners to file a fresh representation by placing their grievances before the appropriate authority and the respondent authorities needs to consider appropriately. Accordingly, the petitioners are directed to file representation before the Secretary, RWD, Government of Arunachal Pradesh, within a period of 15 (fifteen) days from today. On receipt of the representation, the Secretary, RWD, shall consider and dispose of the representation, taking into consideration the mandates provided under the PMGSY Scheme and Guidelines. The exercise directed to be carried out, shall be completed not later than a month from the date of receipt of the representation. It is provided that till the disposal of the representation, the impugned Tender, e-Procurement Press Notice, dated

13.03.2024, issued by the Executive Engineer/DPIU, Laaying Yangte Division, ARRDA, RWD, Kurung Kumey District, shall remained stayed.

¶30The writ petition stands disposed of in terms above, accordingly. No order as to costs.

JUDGE Comparing Assistant

Page No.# 1/36 GAHC040005272024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/171/2024 Tolum Tapam and 90 Ors Son of Tolum Sopin, Village Pipa, PO and PS Damin, Kurung Kumey District, 2: Tarba Tado Son of Tarba Marik Village Pipa PO and PS Damin 3: Tolum Tapam - II Son of Tolum Tasap Village Pipa PO and PS Damin 4: Tarba Yapar Wife of Bamo Ninyu Village Pipa PO and PS Damin 5: Tolum Bai Page No.# 2/36 Son of Tolum Tasap Village Pipa PO and PS Damin 6: Sale Papang Son of Sale Nikma Village Pipa PO and PS Damin 7: Tolum Roruk Son of Shri Tolum Taluk Village Pipa PO and PS Damin 8: Sale kaku Son of Sale Nikma Village Pipa PO and PS Damin 9: Smti Sangha Maya Wife of Sangha Poshi Village Mangio PO and PS Parsi Parlo 10: Sangha Kiopik Son of Sangha Loma Village Mangio Page No.# 3/36 PO and PS Parsi Parlo 11: Bake Tama Son of Shri Bake Talik Village Mangio PO and PS Parsi Parlo 12: Bake Talom Son of Bake Talik resident of Village Rasik PO and PS Koloriang 13: Bake Tayup Son of Bake Tanang resident of Village Rasik PO and PS Koloriang 14: Dalang Tatup Son of Dalang Tanang resident of Village Dalang Koloriang 15: Shri Longda Tapok Son of Langda Tama resident of Village Tongbia PO and PS Koloriang Page No.# 4/36 16: Sangha Maya Wife of Sangha Poshi Village Mangio PO and PS Parsi Parlo 17: Sanghe Kiopik Son of Sangha Loma Village Mangiop PO and PS Parsi Parlo 18: Bamo Takar Son of Shri Bamo Niayu resident of Village Fuba PO and PS Koloriang 19: Bamo Tadup Son of Bamo kaha resident of Village Fuba PO and PS Koloriang 20: Bamo Yana wife of Bamo Kaha resident of Village Fuba PO and PS Koloriang 21: Smti Bamo Yame Page No.# 5/36 Wife of Bamo Kaha resident of Village Fuba PO and PS Koloriang 22: Bamo Joshep Son of Bamo Niayu resident of Village Fuba PO and PS Koloriang 23: Smti Bamo Yakio Wife of Bamo Niayu resident of Village Fuba PO and PS Koloriang 24: Bamo Yaku - 1 Wife of Bamo Tari resident of Village Fuba PO and PS Koloriang 25: Bamo Yaku-2 Wife of Bamo Tagar resident of Village Fuba PO and PS Koloriang 26: Bamo Tada Wife of Bamo Tokpe resident of Village Fuba PO and PS Koloriang Page No.# 6/36 27: Bamo Tatak Son of Bamo Niayu resident of Village Fuba PO and PS Koloriang 28: Smti Bamo Nado Wife of Bamo Tarak resident of Village Fuba PO and PS Koloriang 29: Bamo Tapang Son of Bamo Niayu resident of Village Fuba PO and PS Koloriang 30: Hinium Taha Son of Hinium Tajok Village Chula PO Damin PS Koloriang 31: Hinium Tadap Son of Hinium Talar Village Chula PO Damin PS Koloriang Page No.# 7/36 32: Hinium Tapok Son of Hinium Taruk Village Chula PO Damin PS Koloriang 33: Hinium Tama Son of Hinium Roi Village Chula PO Damin PS Koloriang 34: Hinium Takiang Son of Hinium Patum Village Chula PO Damin PS Koloriang 35: Hinium Tariu Son of Hinium Tatum Village Tarba PO Damin PS Koloriang 36: Lebong Tage Son of Lebong Tasok Village Tarba PO Damin Page No.# 8/36 PS Koloriang 37: Smti Lokam Anshu Wife of Lokam Sakma Village Chula PO Damin PS Koloriang 38: Koria Tama Son of Koria Tania Village Tarba PO Damin PS Koloriang 39: Hinium Tana Son of Hinium Putum Village Chula PO Damin PS Koloriang 40: Hinium Yadam Wife of Hinium Tatup Village Chula PO Damin PS Koloriang 41: Hinium Tagar Son of Hinium Tatup Page No.# 9/36 Village Chula PO Damin PS Koloriang 42: Bamang Takar Son of Bamang Kachang Village Nampe PO Damin PS Koloriang 43: Yangda Tado Son of Yangda Tasuk Village Nampep PO Damin PS Koloriang 44: Dake Yajum Son of Dake Mangha Village Nampep PO Damin PS Koloriang 45: Dake Aying Son of Dake Taniok Village Nampep PO Damin PS Koloriang 46: Dake Tajit Page No.# 10/36 Son of Dake Tawang Village Nampe PO Damin PS Koloriang 47: Dake Naji Son of Nikja Tasi Village Nampe PO Damin PS Koloriang 48: Nikja Takap Son of Lokam Tabing Village Nampe PO Damin PS Koloriang 49: Lokam Pacha Son of Lokam Tasuk Village Nampe PO Damin PS Koloriang 50: Lokam Tatu Son of Shri Lokam Tasuk Village Nampe PO Da