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Madhya Pradesh High Court · body

1994 DIGILAW 428 (MP)

Satya Prakash Sharma v. State of M. P.

1994-06-07

SHACHEENDRA DWIVEDI

body1994
JUDGMENT The writ petition has been preferred by the petitioner under Article 226/227 of the Constitution seeking the quashing of the order dated 31.3.1994, passed by respondent No. 2, Annexure P-2, thereby canceling the lease granted to the petitioner for the collection of the levy of tolls at the bridge located on Morena-Sabalgarh-Ater road at Kilometer 85/2, on the Chambal river. The petitioner was allowed the lease at an auction, being the highest bidder, for Rs. 3,83,000/- for a period of six months. Though the bid was for the period 1.11.93 to 15.6.94, the petitioner was given possession of the said bridge for the collection of tolls, only on 24.12.93, as on that date the agreement in that regard was executed. It is con tended by the petitioner that suddenly, without disclosing any reason, the non-petitioner No. 2 terminated his lease agreement with effect from 1.4.1994 under Annexure P-2 as such its quashing is sought. The respondents, in the return, have challenged the allegations of the petitioner and have submitted that since the petitioner committed defaults in the payment of the instalments as per the provisions of the agreement, the lease had to be cancelled. Under the agreement the petitioner was required to deposit first instalment of Rs. 1,75,000/- on 24.12.93, the second instalment of Rs. 1,00,000/- on 3.1.94 and the third instalment of Rs. 1,08,000/- on 15.3.94, but it is contended in the return that since the petitioner did not deposit the instalments in time, his lease was cancelled by order Annexure P-2. It is further contended by the respondents that earlier to the passing of the order, as contained in Annexure P-2, number of letters were sent to the petitioner through registered post and through other modes. For the petitioner's default in depositing the instalments, the respondents were left with no alternative but to cancel his lease agreement. The main thrust of the arguments advanced by the petitioner's counsel Shri Ramji Sharma, in this petition, is to the effect that the respondents, before canceling the lease agreement, afforded no opportunity of hearing to the petitioner, for explaining that there was no default on his part in depositing the instalments and secondly, that the order Annexure P-2 is a non-speaking order as no reason have been assigned for canceling the lease agreement. The petitioner has further submitted that the over payments have been made by him to the respondents. The petitioner has further submitted that the over payments have been made by him to the respondents. The petitioner was given possession of the bridge only on 24.12.93 whereas under the items of the auction, the lease agreement was to commence from 1.11.93 and the final bid was offered for that period. The respondents have themselves alleged to credit and adjust Rs. 89,500/- for the period in which the petitioner could not operate the lease as per the terms of the bid. The petitioner has also contended that under the auction notice, seven instalments were fixed for making the payment of the accepted bid amount. The petitioner, while giving details of payments in his rejoinder, stated that he had deposited Rs. 3,05,300/- by 21st of March, 1994 though this amount included the deposit of Rs. 42,000/- with the United Commercial Bank in the name of respondent No. 2. From the averred calculations it is tried to be shown by the petitioner that he was, in fact, required to deposit only 2,93,500/- after adjusting the amount of Rs. 89,500/- in the contract money Rs. 3,83,000/-. During the pendency of this petition, under the order of this Court a further amount of Rs. 24,000/- is stated to have been deposited by the petitioner, for the continuance of the order of stay passed by this Court and only on such deposit the respondents had allowed him to continue to operate the lease. Although from the details of the payment as shown by the petitioner, in his additional rejoinder, it appears that there were some defaults in the payment of instalments within the stipulated time, but the petitioner could not be solely held liable for such defaults. The draft of the lease agreement appears to have been prepared for the situation when the lease was to commence from 1.11.93, but it was executed only in 24.12.93. The date of first instalment, as shown in the agreement, appears to have been fixed in view of its original commencement from 1.11.93. However, the respondent admits the payment of 1st instalment in time. However, there is yet another aspect of the matter. The date of first instalment, as shown in the agreement, appears to have been fixed in view of its original commencement from 1.11.93. However, the respondent admits the payment of 1st instalment in time. However, there is yet another aspect of the matter. Before canceling the lease agreement, the petitioner was required to be heard and given an opportunity of explaining the delay, in the matter of the payment of instalments, when he could have shown that he was not at fault and his lease agreement could not be cancelled. But no opportunity was afforded to the petitioner. The respondents' contention that the adjustment of Rs. 89,500/- was to be made with the last instalment is also unsupported by any document. Their Lordships of Supreme Court in the celebrated case of Kumari Shrilekha Vidyarthi etc. v. State of U.P. and others ( AIR 1991 SC 537 ) observed :-- "The Constitution docs not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. Exclusion of Art. 14 in contractual matters is not permissible in constitutional scheme." The alleged notices sent through the registered post or through U.P.C. or by hand, could not shown to have been served on the petitioner. On the plain reading of the impugned order Annexure P-2, no valid reason can be found therein for the cancellation of the lease agreement. The order Annexure P-2 is wholly silent about the reason of cancellation of the lease. The respondent No. 2, while passing the order, Annexure P-2, has not even said a word that the petitioner's lease agreement was being cancelled for his any default in depositing the instalments in time or otherwise. The reasoning is anti-thesis of arbitrariness. Any order can be judged for its being just and proper and not arbitrary and capricious, only from the reasons it discloses. The order Annexure P-2, being a non-speaking order, cannot be allowed to stand. The respondents, in their return, have further alleged that the petitioner was permitting the vehicles to pass on the bridge even after 6 P.M. and the action of the petitioner was in breach of the conditions of the contract. But this allegation is a bare allegation without any inquiry in that regard. The respondents, in their return, have further alleged that the petitioner was permitting the vehicles to pass on the bridge even after 6 P.M. and the action of the petitioner was in breach of the conditions of the contract. But this allegation is a bare allegation without any inquiry in that regard. The petitioner is also not stated to have been informed of this lapse nor any explanation is said to have been sought from him about this allegations. I have as such found no substance in the allegation. As a sequel of the above discussions, the petition succeeds and is allowed. The order of respondent No. 2 as contained in Annexure P-2, is quashed. The period of the lease agreement expires on 15.6.94 and thereafter the petitioner would have no right to operate the lease. In the facts and circumstances, there shall be no order as to costs.