TMI Blog2001 (9) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Memorandum No.15/1(3)/PR/N/DEW/IE-12/94(V) dt.11.3.1998. The disputes between the parties relate to the right of collection of toll charges from the vehicles using part of Durgapur Expressway between 22 km. to the end point Palsit - a stretch of 48 km. of road on National Highway No.2, known as Durgapur Expressway. That the said stretch forms part of a National Highway which vest with the Central Government and the Central Government, in exercise of its powers under Section 5 of the National Highways Act, 1956 [hereinafter referred to as The Highways Act ], issued a Notification to the extent that the functions in relation to the execution of works pertaining to this National Highway shall be exercisable also by the State Government of West Bengal, subject to the condition that the State Government concerned shall, in the exercise of such functions, be bound to comply with the rules for the time being in force made under the Act is indisputable. The Parliament has enacted The National Highways Authority of India Act, 1988 [hereinafter referred to as The Highways Authority Act ] in order to get over the difficulties experienced from time to time in maintaining effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of franchise for collection of toll charges in respect of the portion of the Highway under dispute. Since, the highest bid offered in a sum of ₹ 1,51,000/- per day was not acceptable to the authorities concerned for a second time bids were called for and though the highest bid in a sum of ₹ 1,99,909/- per day, was accepted, there has been violation of the terms and conditions of the grant, resulting in termination of the same and forfeiture of earnest money. Once again sealed tenders were called for and the 1st respondent, whose bid was for ₹ 2,20,701/- per day, was accepted and entrusted with the collection of toll charges in question. A written contract was entered into on 13.11.97 for the purpose for a period of one year commencing from 13.12.97 between the 1st respondent and the State of West Bengal, which at that point of time happened to be the Executing Agency. It is interesting to note that Clause 1 of the terms and conditions of the agreement stipulated that the Agency for toll collection shall be for one year and in no case extension of the period would be allowed. However, the additional clauses agreed (Addl. Clause 1) provided that the Agency fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bid which was not initially accepted as being low) for six months with effect from 16.12.97 subject to the condition that he would pay at the original contracted rate after six months and dues will be paid in 10 equal installments. The very Joint Secretary issued another Memorandum dated 11.3.98, permitting him to deposit bid money with effect from 16.12.97 and further ordering that the Toll Collector will be liable to continue to deposit bid money at the rate of ₹ 2,90,000/- per day, if Dankuni and 17 kms of Durgapur Expressway is opened during currency of the present contract period, provided the toll charges are increased proportionately. After referring to the payment schedule permitted under the other Memo dated 11.3.98, several other concessions like dispensing with the requirement of deposit of bid money in advance and modifications of the earlier agreed terms seem to have been also indiscriminately made, of which strong reliance has been placed for the 1st respondent on para 15, which read as follows: 15. Subject to satisfactory performance of the toll collector during the contract period of one year, to be decided by PW (Roads) Department, the Toll Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, if any, in the meantime. By this time, the Central Government, which came to know of this litigation, seems to have on 15.2.99 issued instructions to the State Government to challenge the injunction order passed by the Court, expeditiously. On 1.7.99, a request seems to have been also made to the State Government to initiate action to transfer toll collection arrangement as well the stretch of the National Highway in question to the NHAI in view of the Notification dated 4.2.99 entrusting the Highway in question to NHAI. On the willingness expressed by the State on 16.8.99, NHAI also has been directed by the Central Government to take necessary follow up action, indicating further that the arrears due from the 1st respondent were said to be ₹ 4,19,75,250/- for 13.12.97 to 12.12.98; and ₹ 35,31,210/- for 13.12.98 to 18.1.99. The State of West Bengal appears to have filed Miscellaneous Appeal FMAT No.2360 of 1999 before the Calcutta High Court, challenging the order dated 12.11.98. A separate suit for recovery of the outstanding arrears from the 1st respondent for the period upto 31.5.99 appears to have been also filed. By a Memorandum dated 24.8.99, the very Joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of City Civil Court, Calcutta, was appointed as Receiver to supervise the collection of toll charges, until further orders. Prior to this on 11.10.99, an order for maintaining the status quo also appears to have been made. The Special Leave Petition file by the State against the order dated 27.10.99 in SLP (C) No.17123/99 came to be dismissed on 17.12.99 on the following terms: Both the parties agree that the receiver after collecting the amount of toll shall pay the entire amount to the State. In that view of the matter, no orders are sought by the learned counsel for the petitioner. The Special Leave Petitions are disposed of accordingly. If there is any objection regarding the expenses incurred by the receiver or any other amount spent by him, it shall be open to the petitioner to approach the High Court. The grievance of the State Government seems to be that the Receiver is not able to cope up with the work and there had been default in not only filing the returns properly but also in the remittance of the amounts. The public exchequer continued to be the loser and with the Court Receiver on the job, the State was unable to properly assess the quantum of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s emanating from records that those materials relied upon for the plaintiff-contractor do not, in law, constitute any or sufficient basis of evidence, which could establish even if not rebutted by evidence adduced on the other side, the plaintiff s case for an extended term in law. The fact that substantial mischief or injury is likely to be necessarily caused by the grant of the order, under challenge, unlike in the case of refusal of the relief, and that the grant would lead to irreparable loss and damage to the interest of the State as well as public interest, seems to have been completely lost sight of notwithstanding the serious violations of the conditions and terms of the contract between parties. The learned Judges of the Division Bench of the High Court ought to have seen that there can be no legal impediment for the Department to make preparations ahead of the period of expiry of the one year contract given in favour of the plaintiff to facilitate the entrustment of the task of collecting the toll in question for the period subsequent thereto, to a newly selected contractor at competitive rates. The Division Bench further overlooked the vital legal proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract for collecting the toll in question only for a period of one year from 13.12.1997 and that as per the provisions of law noticed supra, such collection by the Executing Agency departmentally or through franchisee as in this case, is to be for and on behalf of the Central Government and the amounts have to be remitted to the Central Government, which only is the beneficiary of such collection. When the statutory rules provided for collection through franchisee and the selection of the contractor only through public auction under the instructions for specific periods as the Central Government may issue, at competitive rates and in this case such grant was made on behalf of the Central Government for one year initially, there can be no extension granted in law by the Executing Agency without the prior instructions or approval of the Central Government. It would be futile for anyone to claim or for Courts to countenance any claim that without reference to the Central Government on whose behalf the State Government was acting as Executing Agency could under the pretext of a proposed extension proceed to extend the same for 30 years with a provision for periodical review of thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case on hand is concerned, the plaintiff could not legitimately claim to have acquired any rights by virtue of the Memorandum dated 11.3.1998 which has no force or sanctity in law and the Central Government or the NHAI cannot be said to have incurred any obligation or liability thereby, stepping into the shoes of the State Government which acted as an Executing Agency for the period commencing from 4.2.1999. We are unable to appreciate as to how the Division Bench, in the teeth of concrete and clinching material that from the inception of the contract the first respondent plaintiff had been playing foul and has been devising methods and ways to avoid his responsibilities and has been shown to be guilty of serious lapses in depositing regularly the amounts due, could have been given any protection by issuing directions of the nature under challenge in these appeals. The obvious impracticalities involved in the appointment of an Advocate-Receiver to supervise such a stupendous task of the nature in question seems to have also been overlooked and escaped the attention of the Court and no serious thought seems to have been also bestowed upon the materials brought to its notice ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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