IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.5109 of 2008
PRITHVIRAJ SINGH
Versus
THE STATE OF BIHAR & ORS
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5. 4.7.2008 Heard Mr. Sanjay Singh, learned counsel for the petitioner and
learned Additional Advocate General No. 11 for the State.
The petitioner seeks quashing of the Memo No. 613 dated
29.2.2008 issued by the respondent no. 2, Chief Engineer, National
Highway Wing, Road Construction Department, Government of Bihar,
Patna by which he has decided to cancel the agreement for the collection
of tolls and also the consequential letter no. 331 dated 4.3.2008 issued by
the Executive Engineer, N.H. Division, R.C.D. Purnea by which he has
asked the petitioner to stop collection of toll-tax and for further reliefs.
The petitioner was granted the right of collection of toll (Purnea
Bye Pass) H.L. bridges over river Kari Koshi in K.M. 404 of N.H. 31 in
the district of Purnea through an agreement dated 26.9.2007 (Annexure-2)
entered into between him and the Executive Engineer on behalf of the
Government of Bihar for the period from 27.9.2007 to 26.9.2008. During
the period of the agreement on 2.11.2007 at about 11 P.M. the Sub-
Divisional Officer, Sadar, Purnea made an inspection and reported that
about six receipts of toll tax were received from the truck drivers whose
vehicle numbers were given in his report in which they had paid barrier
fee, the receipts being of the value of Rs. 200, but did not contain either
the vehicle number or any signature. At 11.30 P.M. the S.D.O. made a
surprise inspection of the counter of the petitioner on the barrier but did
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not find the counterfoils of the said six receipts and found receipts of only
Rs.15, Rs.10 and Rs.5 which were issued to the vehicles. The Sub-
Divisional Officer sent the report dated 3.11.2007 to the District
Magistrate, Purnea who forwarded the same to the Chief Engineer,
National Highway Wing, Road Construction Department. A show cause
was issued to the petitioner which he replied denying all the allegations
against him. Thereafter, by the impugned order dated 29.2.2008 the Chief
Engineer cancelled the agreement and further directed the forfeiture of the
security deposit and also directed that a criminal case should be instituted
against him. On the basis of the said order dated 29.2.2008 (Annexure-
6), the Executive Engineer issued the impugned letter dated 4.3.2008 to
the petitioner enclosing a copy of the order of the Chief Engineer directing
him to stop collection of toll tax with immediate effect.
Learned counsel for the petitioner submits that the action of the
authorities was malafide and there is nothing in the report of the Sub-
Divisional officer to show that any irregularity was found at the counter
where the collection of tolls was being made by the petitioner. So far as
the receipts are concerned, it is submitted that there is nothing in the
receipts to connect the petitioner with them; neither the vehicles numbers
are given nor any signature is there and the said receipts appear to have
been created only to falsely implicate the petitioner by someone. It is
further submitted that in terms of the agreement receipts issued by the
Executive Engineer, N.H. Division, R.C.D. Purnea should only be used
and the counterfoils of the same should be deposited in the office of the
Executive Engineer, N.H. Division, Purnea which was being done by the
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petitioner regularly. It is urged by learned counsel that there was no
allegation or complaint against the petitioner by anyone for illegal
collection of toll-tax and all of a sudden the so-called report has been
created to falsely implicate the petitioner and to get his contract cancelled.
Learned counsel further contends that the impugned order of the Chief
Engineer suffers from complete non-application of mind as there is
absolutely no reason in the said cryptic order and the explanation
submitted by the petitioner to the show cause notice has not at all been
considered in the said order. Learned counsel also points to the fact that
under the terms of the agreement, the petitioner was required to put on a
display board, for the benefit of the public, the rate of tolls to be levied on
different category of vehicles and there is nothing in the report of the Sub-
Divisional Officer to show that the said Display Board was not found
when he reached the spot. It is argued by learned counsel that even the
report of the Sub-Divisional Officer is a very cryptic one and the same is
totally insufficient to prove the allegation against the petitioner to the
extent of cancellation of his contract.
It is lastly submitted by learned counsel that under the terms of
the agreement entered into by the parties, as per Clause 18 of the same, in
the event of violation of the terms of the agreement of the lease, the right
of collection may be terminated without compensation by the first party,
i.e., the Executive Engineer. Against the said order of the first party
cancelling the right of the second party under Clause 19 of the agreement
an appeal shall lie to the Chief Engineer, N.H. Wing, R.C.D., Bihar, Patna
within 20 days of the receipt of the said order. Hence, the original order
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could not have been passed by the Chief Engineer himself or any official
superior to him.
Learned Additional Advocate General No. XI countering the
aforesaid argument has sought to support the aforesaid order stating that
the action has been taken after a report was duly submitted by the Sub-
Divisional Officer, Sadar, Purnea in which he had stopped the various
trucks and obtained six receipts from them which was contrary to the
terms of agreement because instead of Rs. 15, receipts of Rs. 200 had been
issued. It is further submitted that the principles of natural justice was
followed by the departmental authorities by issuing show cause to the
petitioner and only thereafter the impugned order dated 29.2.2008 has
been passed. It is thus urged by Additional Advocate General that
cancellation of the agreement of the petitioner is in accordance with law
and not to be review by this Court.
It is further argued by learned Additional Advocate General that
the contract itself has been entered into between the Executive Engineer,
N.H. Division, Purnea on behalf of the Government of Bihar and thus the
Government of Bihar would be the first party and it is evident from the
impugned order dated 29.2.2008 that the same is in furtherance of the
decision taken by the Government to cancel the contract which has been
merely communicated by the Chief Engineer. It is urged by learned
counsel that the Government of Bihar being essentially the first party, it
was open to the Government to have passed the order of cancellation and
the same has been done in the present case.
On a consideration of the facts and circumstances of the case
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and the rival submissions of the parties, this Court does not find force in
the argument of learned Additional Advocate General. The agreement
entered into between the parties has to be read as a whole and not only the
description of the first party which has been given as the Executive
Engineer N.H. Division, Purnea on behalf of the Government of Bihar
(hereinafter called the first party). The said description considered along
with clause 18 and 19 of the agreement can lead to the only conclusion
that the power to cancel the lease of the second party, that is, the
petitioner, of the right to collect tolls for violation of the terms of
agreement of the lease is vested only in the first party against which an
appeal has been provided for in Clause 19 to the Chief Engineer, N.H.
Wing, Road Construction Department, Government of Bihar, Patna. It
would be absurd to so interpret the first party as meaning also the State
Government acting directly since it is evident that no appeal can lie to a
subordinate official i.e, the Chief Engineer, against the order of a higher
executive officer of the Government of Bihar. Thus, the only conclusion
that can be drawn is that the reference to the first party wherever it occurs
in the agreement is to the Executive Engineer, N.H. Division, Purnea
acting on behalf of the Government of Bihar and not any other higher
official. It is only against the order of the Executive Engineer that the
appeal to the Chief Engineer can lie since the agreement is clear on the
point that the decision of the Chief Engineer on such an appeal shall be
final and binding on both the parties.
Further, this Court find that the impugned order is a cryptic one
which does not show any application of mind to the facts involved or the
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issues raised by the petitioner in his explanation to the show cause. The
said order imposes serious civil consequences upon the petitioner
including forfeiture of security deposit apart from cancellation of his
agreement and thus it could not have been passed in the manner it has
been passed without indicating reasons for the same. The same being an
action of a public authority, whether passed by the Government or the
Chief Engineer, it must be considered arbitrary and unreasonable for the
said reason.
For the aforesaid reasons, the impugned order dated 29.2.2008
being without jurisdiction as well as being an arbitrary order cannot stand
and it is accordingly quashed, as also the consequential order dated
4.3.2008 passed by the Executive Engineer communicating the aforesaid
order dated 29.2.2008 of the Chief Engineer to the petitioner.
The writ application is accordingly allowed.
P. Kumar (Ramesh Kumar Datta, J.)