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During the late evening of October 30, 2022, a 141-year-old bridge suspended with wires over the Machchu river of Gujarat broke loose and submerged under water leading to the casualty of approximately 141 people. The bridge, known as<\/span>the \u201cjhulta pull\u201d,<\/span><\/a> was originally constructed during the period of 1858 \u2013 1922 by Waghji Thakur, the ruler of Morbi and had re-opened, only recently, for public visits, after being renovated by Ajanta Manufacturing Pvt. Ltd.\/Oreva Group. Post the incident, and it was brought to notice that the contractor was working under an expired Operations and Maintenance<\/strong> (\u201cO&M\u201d) concession agreement within the alleged supervision of the Morbi Municipality.<\/span><\/span><\/p>\n Following the incident and after much speculation and scrutiny, several reports emerged wherein certain substantial shortcomings in the Tender process, the Contract and its management were highlighted. These lacunae were furthered by corruption and a severe absence of due procedure, thus culminating in an unfortunate incident and casualty.<\/span><\/p>\n On the basis of the reports as well as the facts and circumstances, the Hon\u2019ble Gujarat High Court took<\/span>suo moto cognizance<\/em><\/a> of the matter and initiated civil and criminal proceedings against several officials of the Morbi Municipal Corporation (\u2018Concessionaire\u2019) as well as against Ajanta Manufacturing Pvt. Ltd. (\u2018Contractor\u2019). An acknowledgement of these proceedings was also made by the Hon\u2019ble Supreme Court of India in the case of<\/span>Vishal Tiwari v. Union of India<\/em><\/a>, wherein the Bench comprising of the Hon\u2019ble Chief Justice of India held that,<\/span><\/span><\/p>\n \u201cShould it become necessary at any stage to move this Court at a later date, liberty is granted to the petitioners or to any other aggrieved to do so. We dispose of these proceedings, leaving it open to the petitioners to pursue their remedies before the High Court. Since the High Court is already seized of the suo moto proceedings, we request the High Court to take them up on a periodical basis so that the purpose of underlying the assumption of jurisdiction is duly fulfilled.\u201d<\/em><\/span><\/p>\n<\/blockquote>\n Thus, in lieu of an absence of due procedure, which led to the collapsing of a bridge, a dire need arose for a detailed examination of the procedure through which the alleged tender for the improvement and renovation of the bridge was awarded. This became necessary on account of the utter failure to comply with contractual obligations, the ultimate consequence of which was the ill-maintenance of a dilapidated ruin leading to the casualty and injury to a substantial number of people.<\/span><\/p>\n <\/strong><\/p>\n General O&M Concession Terms and their Apparent Lack Thereof<\/strong><\/span><\/p>\n The first and foremost step in any basic concessionaire agreement is the Expression of Interest (EOI) or Tender, which is followed by bids from qualified bidders, who are required to submit their experience and financial quotations. Thereafter, the authority makes a selection from amongst the bidders on the basis of such experience and an ideal financial quote and signs the agreement with the awarded agency. However, in the case of the State of Gujarat,<\/span>Section 110A of the Gujarat Infrastructure Development Act, 1999<\/a> (\u201cGIDA\u201d) allows the State Government or its agency (including any local authority operating under such agency) to enter into direct negotiations where the projects are covered within the ambit<\/span>of Schedule III of the Act<\/a>, where the said schedule lays down a quad-criteria for classifying an eligible project.<\/span><\/span><\/p>\n After completion of the aforementioned process, the agreement so signed consists of complex and detailed clauses, which seek to clearly define the rights of the Concessionaire as well as the contractor, so as to reduce friction. Amongst the different types of concession agreements, an O&M concession agreement is the one adopted for contracts where the maintenance and operation of a structure are in question. Thus, for successful execution, it is necessary for the agreement to lay down an unambiguous listing of the duties of the contractor for the purpose of adequately maintaining the structure. Thus, under the legal system, the signing of a concession agreement is the consequence of a lengthy procedure filled with substantial steps and formalities, all of which have intricate value within the system. However, after the collapse of Jhulta Pull, the fact of complete absence of most of these steps and formalities surfaced, thus giving a prima facie inference to the moment when the ball started dropping.<\/span><\/p>\n The various clauses which are, in actuality, present in the Indian concessionaire agreements include the following:<\/span><\/p>\n Majority of the above-mentioned clauses were apparently missing from the agreement between the Morbi Municipality and the Ajanta Oreva Group. The facts in the suo moto<\/em> case (<\/span>Suo Motu v. State of Gujarat<\/a><\/em>), the Hon\u2019ble Gujarat High Court observed that the agreement dated March 8, 2022, wherein the Concessionaire and the Contractor had been the alleged parties, was not actually approved by the Civic Body. It was further brought to the notice of the Hon\u2019ble Court that there was also a preceding MoU between the parties, which, although drawn on 16.06.2008 for a period of 9 years, was inconsequential owing to the absence of any action by the contractor. In fact, the entire communication between the Concessionaire and the contractor, wherein the alleged maintenance of the bridge was supposed to be the subject matter, only seemed to concern the price at which the tickets were to be drawn, which further reflected the disregard to the actual objective of the O&M agreement.<\/span><\/span><\/p>\n It was further observed by the Hon\u2019ble Court that post the expiration of the otiose 2008 MoU in 2017, which was merely one-and-a-half pages long and was void of any definitions of the conditions or obligations of the contractor, the latter continued to act as the contractor and continued to operate and collect revenue from the dilapidated bridge, in spite of the fact that no new agreement or formal extension of the pre-existing agreement was drawn.<\/span><\/p>\n\n
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