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2024 DIGILAW 1085 (AP)

N. Aruna v. State of Andhra Pradesh

2024-08-12

VENKATESWARLU NIMMAGADDA

body2024
ORDER : 1. As the issue involved in all these writ petitions is inter-related, all these writ petitions are taken up together and are disposed of through this common order. W.P.No.11215 of 2023 is taken as a leading case. W.P.No.11215 of 2023 2. This writ petition is filed under Article 226 of the Constitution of India, claiming the following relief: “Writ of Mandamus or any other appropriate Writ direction or order declaring the OFFICE ORDER of the 8th respondent issued under vide No E2/53512/2021JMD dl 02.11.2022 ordered to recover an amount of Rs.2,92,127/- from the petitioner retrospectively w.e.f 10.07.2018 from the hire charges payable from month of October 2022 on the basis of survey report conducted by the 7th and 8th respondent and submitted to the 4th respondent under vide Case No E2/353 Survey/2021/JMD dt 15.11.2021 in respect of the petitioners Hire Bus bearing Regd No AP 04 TT 9599 plied on the route Jammalamadugu Kolimigundla Tadipatri Pallevelugu contrary to the Tender Notification of the 2nd respondent dt 22/23.06.2013 and allotment letter of the 3rd respondent dated 12.07.2013 as well as the agreement with the Corporation rep by 4th respondent dt 25.10.2013 and without notice to the petitioner is illegal and arbitrary and liable to be set aside consequently direct the respondents to refund the amount of Rs.2,92,127/- to the petitioner deducted from the Hire charges in respect of the petitioner Hire Bus bearing No.AP 04 17 9599 plied on the route Jammalamadugu Kolimigundla Tadipatri Pallevelugu forthwith by suspending the OFFICE ORDER of the 8th respondent issued under vide No E2/53512/2021JMD dt 02.11.2022” 3. Brief facts of the case are that, the petitioner is a private transport operator having vast experience in transport filed. The 2nd respondent issued Tender Notification dated 22/23.06.2013 for hiring private buses under “Hire Scheme” and invited applications from private entrepreneurs/operators for supply of Bharat Stage-III, 2013 Model Express, Pallevelugu and City Ordinary Type Buses under “Hire Scheme” for operation on the identified routes. 4. Pursuant to the tender notification, the petitioner submitted his application on 09.07.2023 for the route Jammalamadugu – Kolimigundla – Tadipatri as Pallevelugu Service under Hire Scheme at Jammalamadugu Depot. As per the Notification, the route length per single was 7.5 Kms and for six singles it is 392 Kms and floor rate is Rs.16.81 Ps per kilometer and the petitioner was declared eligible for allotment of the route applied for. As per the Notification, the route length per single was 7.5 Kms and for six singles it is 392 Kms and floor rate is Rs.16.81 Ps per kilometer and the petitioner was declared eligible for allotment of the route applied for. Accordingly, the route Jammalamadugu – Kolimigundla – Tadipatri was allotted in faovur of the petitioner vide proceedings E/359(1)/2013-ED „K? Zone dated 12.07.2013 by the Office of the Executive Director, Kadapa with the vehicle utilization 392 Kms at the rate of Rs.16.81 ps per kilometer to ply as Pallevelugu. As such, the petitioner had to operate four single trips between Jammalamadugu to Tadipatri and two single trips between Jammalamadugu to Kolimigundla. 5. The A.P.S.R.T.C by considering the representation of the Hire Bus Owners Welfare Association, extended the existing agreements of the Hire Buses of A.P.S.R.T.C to the extent of the days lost due to Covid-19 pandemic from 22.03.2020 to 12.11.2020 being total 236 days. The petitioner entered into supplementary agreement with the Corporation by an amendment. The said Supplementary Agreement dated 22.01.2021 was valid from 23.01.2021 to 15.09.2021. Another Supplementary Agreement was entered on 08.09.2021 for a period of 121 days i.e from 03.09.2021 to 14.01.2022. Finally, the petitioner entered into one year agreement with the 4th respondent from 05.02.2022 upto 04.02.2023. 6. While so, to the surprise of the petitioner, the 8th respondent issued impugned order dated 02.11.2022 ordering to recover an amount of Rs.2,92,127/- retrospectively w.e.f. 10.07.2018 out of the Hire Charges payable to the petitioner from the month of October, 2022 on installment basis. Accordingly, the 8th respondent recovered an amount of Rs.2,92,127/- retrospectively w.e.f 10.07.2018. Aggrieved by the same, the present writ petition is filed seeking to set-aside the proceedings dated 02.11.2022 and direct the respondents to refund the amount of Rs.2,92,127/- to the petitioner, which were already deducted from the Hire Charges. 7. Respondent No.2 to 8 filed common counter affidavit, denying material allegations contending that, Smt. N. Aruna is the registered owner of Bus bearing No.AP 04 TT 999 of 2013 model with seating capacity of 7 in all to ply between Jammalamadugu – Tadipathri via Kolimigundla as Palle Velugu Service with VU 392 Kms. Allotment was issued vide letter dated 12.07.2013. As per the procedure, a route survey was conducted on 15.11.2021 and recorded case No.E2/353(survey-1)/2021-JMD dated 15.11.2021 with committee members. Allotment was issued vide letter dated 12.07.2013. As per the procedure, a route survey was conducted on 15.11.2021 and recorded case No.E2/353(survey-1)/2021-JMD dated 15.11.2021 with committee members. The route length was arrived at 43.42 Kms distance from Jammalamadugu to Kolimigunda and route length was arrived at 70.8 Kms distance from Jammalamadugu to Tadipatri via Kolimigundla for single trip. The route length was arrived 70.8 Kms distance from Jammalamadugu to Tadipatri via Kolimigundla after applying correction factor. Thus, the total Vehicle Utilization (VU) per day is calculated to 363.20 Kms. At the time of allotment, as per Tender Notification, the Vehicle Utilization was given at 392 Kms and base rate was fixed at Rs.16.81 Kms. 8. It is submitted that, as the route survey was conducted on 13.11.2021 in the presence of the Regional Committee of Kadapa District, Hire Bus Owners Association and route length was corrected to factual of operation, there is no illegal activity in recovery of the excess paid hire charges from the petitioner to the tune of Rs.2,92,127/-. 9. It is submitted that in terms of Tender Notification vide item No.13 it was clearly mentioned that "the allotted route and allotted daily Kms will not be changed except under exceptional circumstances such as Geographical changes on the route due to Natural Calamities, construction of Bridges/ Flyovers/ Extension of route to improve performance". But, here, there was a change was occurred deviation of route due to under construction of Bridge near Tadipathri town, the same was completed and the deviated route was came under operation in a straight route and Vehicle Utilization was decreased from 392 to 363 Kms for full operation per day. Hence, there is no violation with reference to tender Notification. Initially route length was taken as it is and Vehicle Utilization was 392 Kms and base rate was Rs.16.81 ps and there is no dispute in allotment of route. 10. It is submitted that in terms of Tender Notification, the route JMD-TDP (Via. Kolimigundla) was allotted as per procedure to the petitioner and permit to ply was given to the petitioner to operate the said bus on the allotted route on par with other permitted hire buses as per the same tender notification. 10. It is submitted that in terms of Tender Notification, the route JMD-TDP (Via. Kolimigundla) was allotted as per procedure to the petitioner and permit to ply was given to the petitioner to operate the said bus on the allotted route on par with other permitted hire buses as per the same tender notification. Even in covid-19 pandemic situation and also after lifting of corona pandemic period the hire lease agreement period was extended to the extent possible as per need on par with other hire bus operations. Hence there is no dispute in operation of services and extension of supplement agreements, in the interest of public. 11. The petitioner was allotted a route to ply between Jammalamadugu Tadipathri (Via Kolimigundia) as Palle Velugu service, with VU 392 Kms, allotment was issued vide letter no.E5/359(10/2013-Ed'K' Zone, dated 12.07.2013. It is true as per procedure a route survey was conducted on 15.11.2021 and recorded in case No.E2/353(survey-1)/2021- JMD, dated 15.11.2021, 12. Finally, it is submitted that, after obtaining the approval of the VC & MD through e- office and adopted the revised route length for the 4 hire buses 392 Kms to 363 Kms and floor rate from Rs.16.81 to Rs.17.18 and with the approval of the VC & MD an amount of Rs.2,92,127/- were recovered from the petitioner's Hire bus hire payment bill from the month Oct-2022 towards excess payment of hire charges and prayed to dismiss the writ petition. 13. During hearing, Sri S. Arifullah, learned counsel for the petitioner submits that, while issuing allotment letter by the corporation after selection of the petitioner as one of the successful tenderer on 12.07.2013 in respect of hiring of buses owned by the petitioner in relation to route Jammalamadugu - Tadipathri (Via Kolimigundia) as Palle Velugu service. The said route was notified with distance and Vehicle Utilization of 392 Kms and agreed to pay floor rate of higher amount per kilometer @ Rs.16-81 ps. 14. Pursuant to the allotment letter, the respondent corporation entered into an agreement with the petitioner on 25.10.2013 for a period of five years. He further submits that, pursuant to the allotment letter as well as the agreement, the petitioner continued and operated the bus as per the terms of agreement as well as the letter of allotment. 15. 14. Pursuant to the allotment letter, the respondent corporation entered into an agreement with the petitioner on 25.10.2013 for a period of five years. He further submits that, pursuant to the allotment letter as well as the agreement, the petitioner continued and operated the bus as per the terms of agreement as well as the letter of allotment. 15. He further submits that, utilization of the subject vehicle is being notified as 392 kms and the petitioner should be paid @ Rs.16-81 ps per kilometer towards hire charges. But, contrary to the agreement and letter of allotment, now the respondent issued impugned proceedings dated 15.11.2021. He also submits that, the said lease was extended from time to time by way of reviewing agreement for every year for the period 05.02.2022 to 04.03.2023 for the 9th year with the same terms and conditions of the Agreement dated 25.10.2013. The agreed rate was enhanced from Rs.16-81 ps to Rs.23-57 ps per kilometer in respect of 392 Kms. 16. Learned counsel for the petitioner would submit that, to the surprise of the petitioner, respondents issued impugned proceedings dated 02.11.2022 informing that, in view of the survey conducted on 15.11.2021 by the Committee consisting of the respondent – Depot Manager and Staff Members, it was found that the distance of kilometers between Jammalamadugu Tadipathri (Via Kolimigundia) is not correct, as notified in the allotment letter and as entered in the agreement, but on ground, it is only 361 Kms. Erroneously, the entire amount calculated as per kilometer was deducted and had been recovered from the bills of the petitioner since 2022, retrospectively from the year 2013 to 2023 is contrary to settled principles of law. 17. Learned counsel for the petitioner further submits that, the impugned administrative proceedings were issued without following any procedure as contemplated as per the terms of the agreement and also without observing principles of natural justice, in the absence of the same, the respondents cannot recover the amount with retrospective effect, but utmost, it can be recovered from the date of proceedings i.e in prospective manner. 18. 18. He further submits that, even as per the last renewed agreement entered by the respondents on 04.02.2022 and also after the alleged inspection is conducted by the respondents, the distance between Jammalamadugu Tadipathri (Via Kolimigundia) was again notified as 392 Kms only, while changing the hire rate per kilometer from Rs.16-81 ps to Rs.23-57 ps, but not the reduced kilometers as per the alleged survey report dated 15.11.2021 and confirmed as 361 Kms, therefore, the impugned proceedings dated 02.11.2022 are liable to be set-aside. 19. On the other hand, learned Standing Counsel for the respondent Corporation submits that the contention of the petitioner that proceedings of the Corporation dated 15.11.2021 cannot be implemented with retrospective effect, but they can only be implemented in prospective manner, is contrary to the facts in hand. He further submits that, it is true while issuing letter of allotment as well as entering into agreement, distance of the route from Jammalamadugu Tadipathri (Via Kolimigundia) was notified as 392 Kms. But, after having conducted physical survey by the committee, in which the petitioner also participated, it was found that the total distance between Jammalamadugu Tadipathri (Via Kolimigundia) is only 361 Kms. Since it is a fact that the distance is only 361 Kms, the petitioner received the excess amount for 29 Kms @ Rs.23.57 ps from the year 2013 and the same is to be recovered from the petitioner, which amounts to Rs.2,92,127/-. 20. He further submits that, due to latches on the part of the respondents, the petitioner cannot be allowed encrich out of such latches, negligence or inaction by the public authority. He further submits that, as per Tender Notification Condition No.13, the allotted route and allotted daily Kms will not be changed except under exceptional circumstances such as Geographical changes on the route due to Natural Calamities, construction of Bridges/ Flyovers/ Extension of route to improve performance. Therefore, pursuant to Condition No.13 of Tender Notification and after conducting survey due to typographical changes, the survey has been conducted and accordingly, reduced the kilometers as per the survey report and recovered the excess amount which was paid by the respondent Corporation to the petitioner and it is only in compliance of the tender conditions only. Therefore, pursuant to Condition No.13 of Tender Notification and after conducting survey due to typographical changes, the survey has been conducted and accordingly, reduced the kilometers as per the survey report and recovered the excess amount which was paid by the respondent Corporation to the petitioner and it is only in compliance of the tender conditions only. Therefore, the claim of the petitioner is contrary to the terms and conditions of the Tender Notification and also settled principle of law and sought to dismiss the writ petition. 21. Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows: 1. Whether the proceedings issued by the Corporation vide No.E2/535(12)/2021-JMD dated 02.11.2022 are valid? Whether an amount of Rs.2,92,127/- can be recovered from the petitioner with retrospective effect or prospective effect? 2. Whether the petitioner can be allowed to enrich due to latches, negligence or timely inaction on the part of the public authority? 3. Whether the petitioner is entitled for refund of the amount recovered by the Corporation? POINT Nos.1 & 3 22. Undisputedly, the Letter of Allotment, the Agreement and the impugned proceedings dated 02.11.2022 issued by the respondent Corporation are executive in nature and hence the proceedings are classified as Executive Proceedings only. 23. It is true that, as per the Letter of Allotment and also as per the Agreement, the distance of the route Jammalamadugu – Kolimigundla – Tadipatri was notified as 392 Kms basing upon the material available with the respondent Corporation on that day. The survey is said to have been conducted by the committee consisting of the husband of the petitioner and other interested parties, wherein it is stated that the distance of the subject route is only 361 Kms, but not stated that the reduction of kilometers had happened either due to geographical changes or due to construction of any bridges, or due to construction of any bridges/flyovers or laying to new roads. 24. The subject Survey was conducted after the lapse of more than eight years from the date of agreement dated 12.07.2013. In the meanwhile, the rate per kilometer was enhanced and the respondent had been paid the amount to the petitioner for 392 Kms upto 01.11.2022. 24. The subject Survey was conducted after the lapse of more than eight years from the date of agreement dated 12.07.2013. In the meanwhile, the rate per kilometer was enhanced and the respondent had been paid the amount to the petitioner for 392 Kms upto 01.11.2022. Since the distance of the subject route was notified as 392 Kms @ Rs.16-81 ps per km, it would be the appropriate price/rate to run the hire bus with the respondent Corporation with minimum profit. If the distance of kilometers were notified as 361 Kms, whether it may be viable or nor, the petitioner may participate or may not hae participated in the tender process. On the other hand, the respondent did not clarify due to change of either typographical change or any other change, as envisaged under Condition No.13 of the Tender Notification and the distance of the route was reduced. In fact, the kilometers were reduced due to the survey conducted by the respondents but not due to the terms of Clause 13. 25. It is settled principle of law that, being the public authority, the respondent Corporation should be more care and cautious enough while issuing tender notification and entering into an agreement with the successful bidder. It is also well settled principle of law that the tendering authority i.e. Corporation cannot alter the tender conditions in the middle of the tender process. Therefore, issuing the impugned proceedings dated 02.11.2022 pursuant to the unilateral survey conducted by the respondents after lapse of 10 years and reducing the kilometers and caused for consequential proceedings to recover the amount on the ground of excess amount was received by the petitioner to the tune of Rs.2,92,127/- vide proceedings dated 02.11.2022 after lapse of eight years and more so, retrospectively with effect from 10.07.2018 is contrary to the facts on hand as well as law. 26. Any Executive Order/instructions are made applicable from the date on which it was issued and they shall have prospective effect, but not retrospective effect. Therefore, the impugned proceedings dated 02.11.2022 are liable to be set-aside. The respondents are not entitled to recover the amount from 10.07.2018 upto 14.11.2021, but, the respondents are entitled to recover the amount from 15.11.2021 to 02.11.2022 as per the hire rates agreed between them. The petitioner is entitled for refund of amount for the period 10.07.2018 to 14.11.2021. Therefore, the impugned proceedings dated 02.11.2022 are liable to be set-aside. The respondents are not entitled to recover the amount from 10.07.2018 upto 14.11.2021, but, the respondents are entitled to recover the amount from 15.11.2021 to 02.11.2022 as per the hire rates agreed between them. The petitioner is entitled for refund of amount for the period 10.07.2018 to 14.11.2021. Accordingly, Point Nos.1 & 3 are answered. POINT No.2 27. It is settled proposition of law that, no person can be allowed to enrich out of the latches and negligence on the part of public authority. In the case on hand, the petitioner was paid agreed hire rate of amount, as if the subject route is 392 Kms, but whereas, after the survey was conducted, it is found only 361 Kms. 28. The tender conditions and terms of agreement do not raise any doubts, and respondents are permitted to conduct a re-survey regarding the distance of the subject route. According to Condition No.13 of the Tender Notification, as argued by the learned Standing Counsel, that the respondents can be authorized to implement such modifications. However, the challenged proceedings do not concern the changes outlined in Condition No.13 of the Tender Notification. Instead, they arose from a physical survey conducted by the respondents, which was not covered by Condition No.13. 29. The action of the respondents in recovering an amount of Rs.2,92,127/- from the petitioner on the ground of excess amount paid, after conducting survey is nothing but altering the tender conditions/terms of agreement unilaterally after completion of the tender notification/agreement. Hence, either alteration/changes to the terms and conditions is contrary to the settled proposition of law. Therefore, the recovery of amount from the petitioner retrospectively from 10.07.2018 till 14.11.2021 is contrary to the terms and conditions of tender and terms of agreement. Therefore, it cannot be said that the petitioner was encriched out of the latches or negligence on the part of the public authority. Accordingly, Point No.2 is answered. 30. In the result, writ petition is allowed-in-part, with the following directions: a. The action of the 8th respondent in issuing proceedings No E2/535(12)/2021JMD dl 02.11.2022 ordering to recover an amount of Rs.2,92,127/- from the petitioner retrospectively w.e.f 10.07.2018 from the hire charges payable from month of October 2022 is declared as illegal and arbitrary; b. The petitioner is entitled for refund of amount for the period 10.07.2018 to 14.11.2021. c. The respondents are entitled to recover the amount from 15.11.2021 to 02.11.2022 as per the hire rates agreed between them. d. The respondents are not entitled to recover the amount from 10.07.2018 upto 14.11.2021; 31. Consequently, miscellaneous applications pending if any, shall stand closed. W.P.No.11273 of 2023 32. In view of my detailed discussion in W.P.No.11215 of 2023; W.P.No.11273 of 2023 is allowed-in-part with the following directions; a. The action of the 8th respondent in issuing proceedings No E2/535(12)/2021JMD dl 02.11.2022 ordering to recover an amount of Rs.2,95,572/- from the petitioner retrospectively w.e.f 10.07.2018 from the hire charges payable from month of October 2022 is declared as illegal and arbitrary; b. The petitioner is entitled for refund of amount for the period 10.07.2018 to 14.11.2021. c. The respondents are entitled to recover the amount from 15.11.2021 to 02.11.2022 as per the hire rates agreed between them. d. The respondents are not entitled to recover the amount from 10.07.2018 upto 14.11.2021; 33. Consequently, miscellaneous applications pending if any, shall stand closed. W.P.No.11274 of 2023 34. In view of my detailed discussion in W.P.No.11215 of 2023; W.P.No.11274 of 2023 is allowed-in-part with the following directions: a. The action of the 8th respondent in issuing proceedings No E2/535(12)/2021JMD dl 02.11.2022 ordering to recover an amount of Rs.2,95,307/- from the petitioner retrospectively w.e.f 10.07.2018 from the hire charges payable from month of October 2022 is declared as illegal and arbitrary; b. The petitioner is entitled for refund of amount for the period 10.07.2018 to 14.11.2021. c. The respondents are entitled to recover the amount from 15.11.2021 to 02.11.2022 as per the hire rates agreed between them. d. The respondents are not entitled to recover the amount from 10.07.2018 upto 14.11.2021; 35. Consequently, miscellaneous applications pending if any, shall stand closed. W.P.No.11275 of 2023 36. In view of my detailed discussion in W.P.No.11215 of 2023; W.P.No.11275 of 2023 is allowed-in-part with the following directions: a. The action of the 8th respondent in issuing proceedings No E2/535(12)/2021JMD dl 02.11.2022 ordering to recover an amount of Rs.2,89,009/- from the petitioner retrospectively w.e.f 10.07.2018 from the hire charges payable from month of October 2022 is declared as illegal and arbitrary; b. The petitioner is entitled for refund of amount for the period 10.07.2018 to 14.11.2021. c. The respondents are entitled to recover the amount from 15.11.2021 to 02.11.2022 as per the hire rates agreed between them. c. The respondents are entitled to recover the amount from 15.11.2021 to 02.11.2022 as per the hire rates agreed between them. d. The respondents are not entitled to recover the amount from 10.07.2018 upto 14.11.2021; 37. Consequently, miscellaneous applications pending if any, shall stand closed.