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2005 DIGILAW 333 (CAL)

M. R. MONDAL v. STATE OF WEST BENGAL

2005-05-16

NARAYAN CHANDRA SIL

body2005
N. C. SIL, J. ( 1 ) THIS revisional application under Article 227 of the constitution of India is directed against the order impugned No. 85 dated 3. 11. 2003 passed by Sri S. Mukherjee, learned Civil Judge (Senior Division), Additional Court, Burdwan in connection with Title suit No. 90 of 1999 (273 of 1998 ). ( 2 ) IT appears from the order impugned that one application under order 6 Rule 17 of the Code of Civil Procedure filed for amendment of the plaint on 22. 3. 2002. The learned Trial Judge was pleased to reject the said amendment petition. In dealing with the matter the learned Trial Judge found that the petitioner had filed the application for amendment of the plaint in view of the order passed by the Hon'ble apex Court on 3. 9. 2001. He has referred to an order of the Apex court appearing at page No. 78, 79 and 80 of the petition and came to the conclusion that the prayers made in the petition for amendment of the plaint are in violation of the decision of the Hon'ble apex Court. I may quote the relevant portion of the finding of the learned Trial Judge in this regard which runs as below :"after the above mentioned Judgment of the Hon'ble Apex Court dated 3. 9. 2001 it is of my view that the instant amendment petition so filed will surely create a new case which have already been decided by the Hon'ble Apex Court cannot be decided by this court by way of amendment. At last I am of the view that in view of the Judgement of the Hon'ble Apex Court dated 3. 9. 2001 I have no other alternative but to reject the instant amendment petition dated 22. 3. 02 on contest but without cost, keeping in mind the non filing of W. S. by the defdt. /state, it is of my view that after the aforesaid Judgement of the Hon'ble Apex Court the suit is required to be heard on the point of maintainability". ( 3 ) I am really dismayed at the treatment of the amendment application by the learned Trial Judge. He has ignored the basic tenets of writing the order in this regard. /state, it is of my view that after the aforesaid Judgement of the Hon'ble Apex Court the suit is required to be heard on the point of maintainability". ( 3 ) I am really dismayed at the treatment of the amendment application by the learned Trial Judge. He has ignored the basic tenets of writing the order in this regard. There is absolutely nothing in his order as to what was stated by the Hon'ble Apex Court in its judgment or what was the plaint case and what are the amendments sought for and ultimately how the prayers in the amendment application are in violation of the decision of the Hon'ble Apex Court. ( 4 ) A copy of the order of the Hon'ble Apex Court has been annexed in this revisional application. On my scrutiny I find that there is no such pages as 78, 79 and 80 in the order of the Apex Court. In fact the order of the Apex Court consists of 19 pages as it appears from the certified copy of the order of the Apex Court. May be, the learned trial Judge has referred to the page marks of the annexures placed before him. However, it appears from the order of the Hon'ble Apex court that the same was passed in the Civil Appeal No. 6124 of 2001 arising out of the Judgment dated 20. 11. 2000 in FMAT No. 3607 of 1999 passed by the Division Bench of this Court staying not only the action of the Superintending Engineer to re-bid the right to collect the toll in questior but also ordered the continuance of the receiver in respect of the possession of the expressway and collection of toll charges meeting the expenses and deposit with the State etc. with a further direction to the State Government to take decision in terms of Clause 15 of the Memorandum No. l5/l (3)/pr/n/dew/ ie-12/94 (V) dated 11. 3. 1998. ( 5 ) IN dealing with the said matter it is observed by the Apex Court that on 3. 9. 99, FMAT 2360 of 1999 came to be disposed of with a direction to the Trial Court to dispose of the injunction application at an early date. By an order dated 5. 10. 3. 1998. ( 5 ) IN dealing with the said matter it is observed by the Apex Court that on 3. 9. 99, FMAT 2360 of 1999 came to be disposed of with a direction to the Trial Court to dispose of the injunction application at an early date. By an order dated 5. 10. 1999, the Trial Judge vacated the interim injunction and dismissed the injunction petition both on merits and also for the reasons that the interim orders were obtained by misleading the Court. On 11. 10. 99 the Authorities of the State took over possession of the Highway in questions and it is stated that as on 11. 10. 99 the arrears due from the 1st respondent is said to be Rs. 8,39,08,440/ -. Yet at the intervention of the Minister-in-Charge the 1st respondent managed to get directions in his favour and sought for restoration of the collection work to him. The matter was pursued before the High Court in FMAT 3607/99 and by an order dated 27. 10. 99, Shri Tarun Kumar Banerjee, the Ex-Chief Judge city Civil Court, Calcutta an Advocate was appointed Receiver to supervise the collection of toll charges until further orders. Prior to that on 11. 10. 99 an order for maintaining the status quo also appears to have been passed. This was highly depricated by the Apex Court. I like to quote the observation of the Hon'ble Court in this regard. which reads as under :"we are unable to persuade ourselves to appreciate or approve the manner of approach adopted, the method of consideration undertaken and statements on some abstract principles of law, unmindful of the stage of the proceedings and the serious as well as irretrievable public detriment that is bound to result from the conclusions arrived at and directions issued on a perfunctory understanding of the rights of parties, the statutory provisions of the Act, Rules and Regulations governing the issue. "the Judgment under challenge also seems to be oblivious to the oblivious facts emanating from records that those materials relied upon for the plaintiff-contractor do not, in law, constitute any or sufficeint basis of evidence, which could establish even if not rebutted by evidence adduced on the other side, the plaintiffs case for an extended term in law. "the Judgment under challenge also seems to be oblivious to the oblivious facts emanating from records that those materials relied upon for the plaintiff-contractor do not, in law, constitute any or sufficeint basis of evidence, which could establish even if not rebutted by evidence adduced on the other side, the plaintiffs 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 questions for the period subsequent thereto, to a newly selected contractor at competitive rates. The Division Bench further overlooked the vital legal proposition that the Memorandum dated 11. 3. 1998 of the Joint secretary cannot, per see, have the legal consequence of bringing into existence an extended period of contract and that too for 30 years though said to be renewable periodically every three years. The relevant and vital facts apparent on record and the stark realities of the case go to show that the plaintiff has been entrusted with the 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. 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 three years unmindful of the financial interest of the Central Government. Thus, without the concurrence of the Central Government, which also has to be necessarily inconformity with the statutory rules governing the same, there cannot be any extension granted in favour of the plaintiff and the High Court could not have directed the doing of a thing not permissible in or contrary to the statutory rules. It is now an indisputable fact on record that the Central government has issued a statutory Notification dated 4. 2. 1999 published in the Government of India Gazette of even date, in exercise of its powers under section 11 of NHAI Act entrusting the Highways including the stretches in question, to the National highways Authority of India and that with the said Notification, the status of the State Government as Executing Agency has come to an end, though the plaintiff, first respondent herein, seeks to place reliance upon section 12 (l) (a) of the National Highways Act. In our view, the said provision will have no relevance or application to the case on hand. In our view, the said provision will have no relevance or application to the case on hand. The transitional provision in the form of transfer of assets and liabilities of the Central Government to the authority, would take in only subsisting rights already acquired or obligations and liabilities incurred as on the date of publication of the Notification and that too in accordance with law and not in derogation of law. So far as 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 of 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. ( 6 ) THUS from the above quoted portions of the order passed by the hon'ble Apex Court it is clear that the State Government was appointed agent on behalf of the Central Government for the purpose of collection of toll charges and in order to do so the plaintiff won the tender and started collecting the rents. The Hon'ble Apex Court is very much conspicuous to observe that the real beneficiary in such matter is not the State Government but the Central Government. The Apex Court has also made it clear as regards the change of situation after the issue of further notification by the Central government. ( 7 ) IT appears from the amendment application that amongst other things petitioner intended to incorporate the National Highway authority of India and the Union of India as parties to the suit and also incorporate some subsequent events. In such case I do not find any justificationas to how the nature and character of the suit will change thereby and how the same will violate the order of the Apex court in question. ( 8 ) THE learned Advocate for the opposite party has referred to the ratio decided in the case of M/s. Star Diamond Co. India v. Union of india and Ors. , AIR 1987 SC 179 . It was held there that the fact that earlier a Government Official issued a letter which was contrary to the subsequent letter would not affect the position or create any estoppel. India v. Union of india and Ors. , AIR 1987 SC 179 . It was held there that the fact that earlier a Government Official issued a letter which was contrary to the subsequent letter would not affect the position or create any estoppel. It rather supports the case of the petitioner to incorporate the subsequent events. ( 9 ) MR. Panja has also referred to the ratio decided in the case of chongtham Gulamani Singh v. Koyam Ibotoml Singh, AIR 1996 Gauhati 93. It was held in that case as follows:"it is well settled principles of law that even the inconsistent plea can be explained or can be pleaded by way of amendment. But the effect of substitution or deletion of certain admitted facts from the pleadings in order to displace the plaintiff completely from such admission made by the defendant in the written statement is not permitted under the law. "but the instant case before us is not of the amendment of the written statement nor there is any question of admission and withdrawal of the same exists. ( 10 ) MR. Panja has also referred to the ratio decided in the case of kishan Lal v. Rajan Chand Khanna. AIR 1993 Delhi 1. The same principle was taken as in the case of Chongtham Gulamani Singh (supra) in that case. ( 11 ) MR. Saktinath Mukherjee, the learned senior counsel appearing for the petitioner has referred to the ratio decided in the case of Dibakar Naskar and Ors. v. Rotary Village Co-operative multipurpose Society Ltd. and Ors. , 82 CWN 44. In the other case between dharmalinga Chetti v. A. M. Krishnaswami Chetty, AIR 36, 1949 Madras 467 in which it was inter alts held that truth or falsity of case put in amendment need not be considered while considering whether amendment should be allowed or not. If it is false, the petitioner will fail in suit with costs. ( 12 ) ACCORDINGLY, in view of the several judicial pronouncements referred to by the learned Advocates for the parties I do not find any merits in the order passed by the learned Trial Judge in rejecting the application for amendment of the plaint. The revisional application is thus liable to be allowed. ( 13 ) THE revisional application is allowed and the order impugned passed by the learned Trial Judge is hereby set aside. The revisional application is thus liable to be allowed. ( 13 ) THE revisional application is allowed and the order impugned passed by the learned Trial Judge is hereby set aside. The amendment petition filed before the learned Trial Judge by the plaintiff is allowed. The learned Trial Judge is directed to amend the plaint in terms of the prayer filed in the application for amendment before him and in doing so the learned Trial Judge is directed to give opportunity to the defendants to file additional written statement, if the written statement is not yet filed and thereafter proceed to dispose of the suit. "let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates for the parties as expeditiously as possible. " revisional application allowed.