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2017 DIGILAW 539 (ALL)

JAI PRAKASH SINGH v. STATE OF U. P.

2017-02-15

A.P.SAHI, SANJAY HARKAULI

body2017
JUDGMENT By the Court.—Heard learned Counsel for the petitioner. 2. The petitioner is a lessee for collection of toll at Pipra Ghat, district Balrampur over Rapti River on a particular bridge. The said collection of toll is under a lease dated 1.4.2015, the period whereof is three years. According to the learned Counsel for the petitioner, since the lease subsists and has not been cancelled in accordance with the Northern Indian Ferries Act, 1878, the directions of the respondent to the petitioner not to collect toll on the bridge forthwith is without authority in law. According to the petitioner, the same is in violation of the principles of natural justice and clearly amounts to a breach of the terms and conditions of the lease that has been entered into in terms of Sections 8 and 10 of the 1878 Act. Thus there is a statutory violation as well as the violation of the terms of lease, that too even in an arbitrary manner and in violation of the principles of natural justice, therefore the impugned notification dated 2.12.2016 as well as the consequential order issued to the petitioner on 31.1.2017 should be quashed. The petitioner should be allowed to continue to collect toll for the balance of the period as envisaged under the deed itself. 3. Learned Standing Counsel on the other hand submits that the petitioner cannot claim this continuance as a matter of right, inasmuch as the State Government has taken a policy decision and by virtue of the said decision, the collection of toll in relation to certain bridges and ferries has been withdrawn by the State Government under the impugned Government Order dated 2.12.2016. This being in public interest cannot therefore be questioned nor any claim can be made by the petitioner to continue the said lease in his favour. Learned Standing Counsel has invited the attention of the Court to Section 15 of the 1878 Act to contend that after a lease has been let out in terms of Section 8, and if after such declaration any impediment is caused on account of any such contingency as has happened in the present case for collection of toll, then the party concerned shall be entitled to the adjustment of the rents that were payable under the lease agreement. 4. 4. He further submits that if there is any such dispute relating to the amount of collection of toll or deposit of the money by the petitioner the same can be dealt with by the appropriate authority in accordance with law. 5. Having heard the learned counsel for the parties, the question that arises is as to whether the petitioner who is under a contract is entitled to insist upon the performance of a contract which cannot now be executed keeping in view the policy decision of the State Government under the notification dated 2.12.2016. 6. Having considered the submissions, what we find is that keeping in view the provisions of Section 15 of the 1878 Act read with the provisions of Clause 21 of the General Clauses Act, 1897, the power is there with the State Government and it can as a matter of policy withdraw it’s authority to collect toll on any bridge or ferry. Consequently, the power of the Government is therefore available and the action cannot be said to be without authority in law. 7. The question is about the impact of such an order on the petitioner’s contract. The petitioner contends that this amounts to cancellation of the lease which has not been done in accordance with 1878 Act that too even wihout affording opportunity of hearing or notice. Here, the petitioner will have to face the principles of force majeure, inasmuch as after the State Government has taken a policy decision, whereby the performance of the contract would become impossible and secondly, in this situation, a writ for the enforcement of the balance of the period of contract would not be maintainable more so when the withdrawal of toll is in larger public interest. This is a surmounting interest against the individual contractual interest of the petitioner. The petitioner does not therefore have a vested right to claim the continuance of the contract after withdrawal by the State Government through a valid policy decision. 8. One of the arguments advanced by the learned Counsel for the petitioner is that if a statutory provision is there which governs the filed of the contract entered into then any rights vested under the said statutory exercise of power cannot be taken away by way of a notification as has been done in the present case. 8. One of the arguments advanced by the learned Counsel for the petitioner is that if a statutory provision is there which governs the filed of the contract entered into then any rights vested under the said statutory exercise of power cannot be taken away by way of a notification as has been done in the present case. We are not able to accept this proposition for the simple reason that the State Government has issued the notification in exercise of it’s powers under the Act, and we have already referred to Section 15 of the 1878 Act read with the provisions of Clause 21 of the General Clauses Act, 1897. Consequently, none of the arguments hold any water. 9. The petitioner therefore may consequent to such withdrawal be entitled to get adjustment or claim with regard to the lease rent that may be permissible under terms and conditions of the contract and provisions of the 1878 Act as well as the Rules in this regard. The writ petition therefore cannot be entertained and consequently, we find no merit in the claim of the petitioner. 10. The writ petition fails and is accordingly dismissed without prejudice to the rights of the petitioner to seek his adjustment or claim with regard to the lease rent as contemplated under the Rules for the balance of the period of lease.