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2012 DIGILAW 768 (AP)

G. Venkat Narayana v. Depot Manager, APSRTC Depot

2012-08-27

C.V.NAGARJUNA REDDY

body2012
Judgment : This Writ Petition is filed for a Mandamus to set aside proceedings No.01/122(B)/2008-BCM dated 06.06.2012 of respondent No.1 whereby he has ordered payment of Rs.1,97,690/-by the petitioner in seven equal monthly installments at the rate of Rs.28,242/-per month. have heard Mr. K. Sarath, learned counsel for the petitioner, and Mr. G. Venkateswarlu, learned counsel representing Mr. K. Srinivasa Rao, learned standing counsel for APSRTC appearing for the respondents. The petitioner was granted licence for running a cycle stand at Bhadrachalam Bus Station from 27.12.2008 to 26.12.2012. He was permitted to utilize 3120 square feet for maintaining the cycle stand. He pleaded that in December, 2009 the Regional Manager, Khammam, has asked him to utilize the open space existing by the side of the cycle stand and that, however, he did not utilize the same. On 16.06.2011 respondent No.1 has informed the petitioner that as per Para 20 of the audit report, he has occupied excess space of 2185 square yards (the learned counsel for the petitioner stated that reference to square yards is a mistake for square feet). The petitioner was, accordingly, called upon to pay a sum of Rs.1,97,690/-for allegedly utilizing the additional space from 02.12.2009 to 12.06.2011. The petitioner has given a reply on 02.07.2011 wherein it is stated that even though he was asked to utilize the additional space on a nominal rent, he has given in writing his disinclination to use the said site in December, 2009 and that he has not used the additional space at all. The petitioner has, accordingly, denied his liability to pay any rent for the additional space. However, by the impugned order, respondent No.1 has called upon the petitioner to pay the said amount. In the counter affidavit filed by the Law Officer of the APSRTC, it is inter alia stated that on receipt of the petitioner’s reply denying his liability to pay the additional rent, the tender committee requested him to appear before it on 12.12.2011, and that one B. Laxman Rao, resident of Bhadrachalam, has attended before the tender committee on the said date and stated that the petitioner had some urgent work and that, therefore, he was requested by the petitioner to represent him before the tender committee. It is further stated in the counter affidavit that the petitioner’s representative has given a written consent for payment of the additional amount of Rs.1,97,690/-, as the petitioner could not erect fencing for the earmarked space and requested for exemption from paying penalty, while informing that they have now erected the fencing and doing business in the allotted space only, and that on the said representation and after obtaining approval from the Regional Manager, Khammam, respondent No.1 has issued the impugned order dated 06.06.2012. The petitioner filed a reply affidavit wherein he has categorically denied having received any notice from the tender committee for appearing before it on 12.12.2011 and deputed one Mr. B. Laxman Rao on his behalf to attend before it. He specifically denied his authorizing the said B. Laxman Rao to attend the tender committee meeting and that, therefore, the said person giving his written consent for payment of the additional amount does not arise. The petitioner reiterated his stand that he has not utilized the additional space and, therefore, he is not liable for payment of the additional rent. At the hearing, the learned counsel representing the learned standing counsel for APSRTC placed before the Court the purported Minutes of the tender committee wherein it is mentioned that the licensee has deposed before it that he has not arranged the fencing to the allotted space of 3120 square feet, that due to non-existence of fencing, certain vehicles were parked adjacent to the allotted space, that the licensee has sought to accord permission for payment of penalty amount in equal monthly installments, as his licence period is only up to December, 2012, with a request to exempt him from the payment of penal interest. It is further noted in the said proceedings that the Depot Manager has confirmed that the petitioner has erected the fencing and has not been utilizing the excess space and that, therefore, the committee decided to provide the facility of payment of penalty amount in seven equal installments by exempting him from the payment of penal interest on the penalty amount. No records have been produced by the respondents. No records have been produced by the respondents. In the face of unequivocal denial by the petitioner of his receiving any notice for attending the purported Meeting dated 12.12.2011 and his deputing one B. Laxman Rao on his behalf, the burden heavily lies on the respondents to prove service of such notice and appearance of B. Laxman Rao on hehalf of the petitioner before the committee. I find inherent contradiction in the stand taken by the respondents between the counter affidavit filed in the writ petition and the Minutes dated 12.12.2011. As noted above, in the counter affidavit, it is specifically averred that one B. Laxman Rao was deputed by the petitioner who is stated to have given a written statement admitting the petitioner’s liability and agreeing to pay the additional rent/penalty. However, in the Minutes , a copy of which is placed before this Court, it is stated that the licensee himself was present and has deposed before the tender committee admitting his liability. In view of this material contradiction in the stand of the respondents, this Court is unable to accept their plea that the petitioner has admitted his liability. The respondents have not placed before the Court neither the copy of the notice stated to have been sent to the petitioner for attending the Meeting dated 12.12.2011 nor proof of receipt of such notice. In the absence of this documentary evidence, the plea of the respondents that the petitioner was given an opportunity of explaining his stand and that he has admitted his liability, cannot be accepted. As the respondents failed to prove that the petitioner was given a reasonable opportunity of submitting his objections to the proposal of payment of the additional amount for allegedly utilizing the additional space, the action of the respondents in seeking to levy and collect a sum of Rs.1,97,690/-by way of penalty cannot be sustained. Accordingly, the impugned proceedings of respondent No.1 are set side. The respondents are, however, left with the liberty to issue an appropriate notice to the petitioner, giving him an opportunity of submitting his explanation apart from an opportunity of personal hearing and pass a fresh speaking order. The Writ Petition is, accordingly, allowed to the extent indicated above. In view of the allowing the writ petition, W.P.M.P.No.22158 of 2012 and W.V.M.P.No.2853 of 2012 are disposed of as infructuous.