Abhishek Construction & Tollways v. Managing Director, Rajasthan State Road Development & Construction Corporation Ltd.
2020-03-04
MAHENDRA KUMAR GOYAL
body2020
DigiLaw.ai
ORDER : Mahendra Kumar Goyal, J. 1. The facts in brief are that the respondents issued E-NIT dated 20.07.2018 for collection of toll on Bikaner bypass connecting NH-15 Gangapur Road to NH-15 Jaisalmer Road for the period of two years. The last date for submission of the tender was 23.08.2018. Since, the petitioner was successful bidder, it was awarded contract to collect toll w.e.f. 20.09.2018 upto 20.09.2020 under the agreement dated 20.09.2018. As per terms of the agreement, the petitioner was required to pay the installment amount of monthly toll by 20th day of each month. 2. Alleging that on account of cancellation of mining lease vide order dated 20.08.2018, its toll collection was adversely affected, the petitioner approached this Court by way of writ petition No. 26175/2018 which came to be dismissed vide order dated 30.11.2018 in view of clause 33 of the agreement providing the mechanism of resolution of dispute by the Empowered Standing Committee. In pursuance thereof, on the request of the petitioner, an Empowered Standing Committee was constituted vide order dated 05.04.2019. 3. The contention of the petitioner before the Empowered Standing Committee was three fold i.e. (i) on account of cancellation of mining lease by the Mining Department vide order dated 02.08.2018, there was reduction in flow of traffic resulting in lesser collection of toll than expected, (ii) on account of renovation of Boarder Security Force road about 12 kms from the road in question and construction of new railway under bridge, there was diversion of some traffic resulting into reduction of traffic through the post and therefore, sought permission for setting up of two additional toll posts, (iii) to adjust the installment due for the month of December, 2019 to January, 2020 against the fixed deposit and the security amount lying with the respondents. The Empowered Standing Committee vide its order dated 06.02.2020, rejected the claim of the petitioner aggrieved whereby this writ petition has been filed. 4. It is contended by learned counsel for the petitioner that on account of reduction in traffic flow due to cancellation of the mining lease by the Mining Department and renovation of the road and construction of two RUBs, it was suffering huge loses and prayed for alternative measure which has erroneously been directed by the Empowered Standing Committee.
4. It is contended by learned counsel for the petitioner that on account of reduction in traffic flow due to cancellation of the mining lease by the Mining Department and renovation of the road and construction of two RUBs, it was suffering huge loses and prayed for alternative measure which has erroneously been directed by the Empowered Standing Committee. She further contends that security amount already lying with the respondents is sufficient to cover the respondents' due for the month of December, 2019 and January, 2020, therefore, the petitioner could not have been compelled to meet the payment of the aforesaid installments. It is contended that without cancelling the agreement in her favour, the respondents have failed in inviting fresh E-NIT for the remaining period vide E-NIT dated 20.09.2020. She, therefore, prays that order dated 18.02.2020 as well as fresh E-NIT dated 20.02.2020 be quashed and the petitioner be permitted to continue collection of toll for the remaining period under the agreement. 5. Per contra, learned counsel for the respondents submitted that the petitioner has been continuously and consistently in default in making the payment for the toll installments. Learned counsel submits that in the month of October, 2018 till January, 2020, the petitioner was issued as many as 28 notices on different dates, requiring to deposit the due toll installments which are placed on record as Annexure R/3, R/29. Learned counsel submits that a perusal of the chart placed on record as Annexure 2/30 reflects the conduct of the petitioner whereby, consistent default in payment of toll installment is apparent. He submits that referring the clause 14 of the agreement dated 20.09.2018, learned counsel for the respondents canvassed that the petitioner was neither required to give any further notice before issuance of fresh E-NIT nor, it was required that invitation of fresh E-NIT required any express order of cancellation in favour of the petitioner. Learned counsel submits that the order dated 18.02.2020 passed by the Empowered Standing Committee does not warrant any interference of this Court. 6. Placing reliance upon the judgment of the Hon'ble Apex Court of India in Joshi Technologies International Inc. Vs. Union of India (UOI) and Ors.: (2015) 7 SCC 728 , it was canvassed that in case of contractual disputes between a private party and the statutory body, this Court should be loath in interfering in its writ jurisdiction. 7.
6. Placing reliance upon the judgment of the Hon'ble Apex Court of India in Joshi Technologies International Inc. Vs. Union of India (UOI) and Ors.: (2015) 7 SCC 728 , it was canvassed that in case of contractual disputes between a private party and the statutory body, this Court should be loath in interfering in its writ jurisdiction. 7. Heard learned counsels for the parties and perused the record. It is not disputed before this Court that under the terms of agreement dated 20.09.2018, the petitioner was required to deposit toll installments by 20th day of each month and the petitioner has not been able to dispute the consistent default made by it as is reflected in pre-payment of the toll installment as is reflected from the perusal of chart Annexure R/30. In so far as contention of the learned counsel for the petitioner that it suffered loss on account of reduction in traffic flow because of cancellation of the mining lease and renovation of the Boarder Security Force Road about 12 kms from the Bikanar by pass in construction of two toll RUBs is concerned, the Empowered Standing Committee has vide its order dated 18.02.2020 rejected the same on the premise that before the last date of the submission of tender form on 23.08.2019, the mining lease was beyond cancellation from 02.08.2018 and the petitioner was well aware of its effect. It has further been observed that there is construction of no new road from the Boarder Security Force about 12 kms from Bikaner bypass as it was already existing and there has been no traffic diversion on account of any subsequent development. The contention of the petitioner to adjust amount of tender security installment due for the month of December, 2019 and January, 2020 has rightly been rejected by the Empowered Standing Committee in view of absence of any such condition in the agreement Clause 14 of the agreement reads as under: page 44 8. In view of the clause 14, it does not lie in the mouth of the petitioner to contend that before inviting fresh E-NIT, she was neither given any notice nor, the agreement with her was cancelled.
In view of the clause 14, it does not lie in the mouth of the petitioner to contend that before inviting fresh E-NIT, she was neither given any notice nor, the agreement with her was cancelled. Even otherwise also, a perusal of the notice issued to the petitioner dated 13.01.2020 and 15.01.2020 reveals that they were issue issued to the petitioner to deposit the outstanding toll amount within three days, failing which the agreement was liable to be terminated. 9. It has been held in the case of Joshi Technologies International Inc.(supra) as under: para 69, clause 5, 8, 9 and 11 10. Indisputedly, the notices were complied by the petitioner resulting into termination of contract. The petitioner has not been able to point out any such arbitrariness in the action of the respondents warranting interference of this Court in its writ jurisdiction in a purely contractual matter between the parties. 11. Resultantly, the writ petition is dismissed being devoid of merit.