Research › Search › Judgment

Jharkhand High Court · body

2025 DIGILAW 536 (JHR)

Mandeepa Enterprises v. State of Jharkhand

2025-02-20

DEEPAK ROSHAN

body2025
JUDGMENT : DEEPAK ROSHAN, J. 1. Present writ application has been filed by Petitioner praying therein for following reliefs:- (a) For issuance of an appropriate writ, order or direction, for quashing/setting aside the Letter No.1472 dated 28 th November, 2024 (Annexure-12) issued by the respondent no.4-Executive Engineer Road Division, Saraikela wherein for the period 24 th September, 2023 to 27 th November, 2024, alleged shortage remittance of toll have been determined in respect of Kandra-Chowka Toll Plaza (Gidibera Toll Plaza) despite the fact that the contract period has already expired on15 th July, 2023. (b) For issuance of further appropriate writ, order or direction, including writ of declaration that action of the respondent-State of Jharkhand in unilaterally extending the period of the contract and/or compelling petitioner to continue the work of collection of toll is wholly illegal, arbitrary and violative of Article 14 of the Constitution of India and is even contrary to the terms and conditions of the agreement being Agreement No. 01/RFP/2021-22 dated 15 th July, 2021 (Anneuxre-2); (c) For issuance of further appropriate writ, order or direction including writ of declaration declaring that after expiry of period of contract pursuant to Agreement No.01/RFP/2021-22 dated 15 th July, 2021 (Annexure-2) which expired on 15 th July, 2023, the status of the petitioner regarding total toll collection is that of an agent of respondent-State of Jharkhand for deploying specified category of personnel and supervising them for collection of user fee; (d) For issuance of further appropriate writ, order or direction including writ of declaration, declaring that the respondent-State of Jharkhand, post expiry of the period of contract i.e., from 15 th July, 2023 till the date of relieving of the petitioner is only entitled to received payment of actual collection of toll less administrative and operational expenses plus supervision and service charges incurred by the petitioner for collection of toll, especially because respondents, contrary to the terms of agreement, have compelled the petitioner without even any extension order to collect toll from the toll plaza. (e) For issuance of further appropriate writ, order or direction, directing the Respondent authorities to relieve the Petitioner from toll plaza being Kandra-Chowka Toll Plaza (Giddibera Toll Plaza) and to take handover the said toll plaza from the petitioner, and (f) For issuance of any other appropriate writ(s)/order(s)/ direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of the case. 2. Short facts of the case is that Road Construction Department, being an executive authority under Rule 2(f) of Jharkhand Highways Fees (Determination of Rate and Collection), Rules, 2011 published a Notice Inviting Tender for appointment of User Fee Collection Agency for Kandra- Chowka Toll Plaza, situated at Kandra-Chowka Road, vide N.I.T. dated28.05.2021. 3. Petitioner participated in aforesaid tender and, having been declared as Highest Bidder, was awarded the work of User Fee Collection and an agreement being Agreement No.01/RFP/2021-22 dated 15 th July, 2021 was executed between Petitioner and Executing Authority (Road Construction Department) which was valid for a period of two years i.e. up to 15.07.2023. 4. Although contract period expired on 16 th July, 2023 and, as per agreement and RFP document, contract could have been extended for a further period of maximum six months with mutual consent of both the parties, Petitioner, as yet, has not been relieved from the work of collection of toll as User Fee Agency. 5. Petitioner, immediately prior to expiry of contract, wrote letter to executing authority for taking over of Toll Plaza from it, but no action was taken by executing authority. In fact, Petitioner has been repeatedly requesting Respondent-authorities to relieve it from toll operation, but, on one hand executing authority has not relieved the Petitioner from collection of toll and, on the other hand, even unilaterally increased weekly toll installment which was objected to by Petitioner. 6. Even tender notice dated 26 th November, 2024 was issued for appointment of new User Agency for collection of toll, but, as yet, no any User Agency has been finalized by Respondent-authority. 7. Contract period of Petitioner can be summarized as under:- Particulars From To Days Original contract 16.07.2021 15.07.2023 730 days Unilateral extension i.e. non-relieving of the Petitioner. 16.07.2023 Till the date of filing of writ petition. 511 days 8. 7. Contract period of Petitioner can be summarized as under:- Particulars From To Days Original contract 16.07.2021 15.07.2023 730 days Unilateral extension i.e. non-relieving of the Petitioner. 16.07.2023 Till the date of filing of writ petition. 511 days 8. Counsel appearing for Petitioner placed reliance upon provisions of the Indian Toll (Jharkhand Amendment) Act, 2002 and submitted that under Section 2 of the Act of 2002, it is the State Government which is entitled to collect toll pertaining to State Highways and State Government is authorized to place the collection of such toll under the management of such person as may appear to it proper. 9. Further reliance was placed upon Jharkhand Highways Fee (Determination of Rates and Collection) Rules, 2011 and it has been submitted that under Rule 6 of Rules of 2011, user fee/toll can be collected either by (i) Government, (ii) Executing Authority, (iii) Agent appointed by Executing Authority, or (iv) Concessionaire. 10. It has been submitted that under RFP document and the Agreement, it was clearly provided, inter alia, that Road Construction Department was appointed as Executive Authority for State Highways and bid is invited from interested entrepreneurs for collection of user fee. 11. Reliance was made to Clause-2 of Agreement No. 01/RFP/2021-22 dated 15 th July, 2021, wherein period of contract was clearly provided for two years from 16.07.2021 to 16.07.2023. While relying upon said clause, it was argued that contract period of two years could have been extended upon mutual agreement between the parties but limited to only six months. 12. It was vehemently submitted that despite the fact that Petitioner did not give consent for extension of contract period, Respondent authorities have, as yet, not relieved the Petitioner and are demanding from the Petitioner amount towards enhanced weekly remittance which was agreed under original contract. 13. Petitioner submitted that its status, after expiry of the period of contract, is that of the Agent of Road Construction Department and it is only liable to make payment of actual toll collection less administrative and operational expenses including supervision and service charges incurred by it for collection of toll. 13. Petitioner submitted that its status, after expiry of the period of contract, is that of the Agent of Road Construction Department and it is only liable to make payment of actual toll collection less administrative and operational expenses including supervision and service charges incurred by it for collection of toll. However, despite aforesaid fact, Respondent, vide Letter No. 1472 dated 28 th November, 2024, raised demand towards alleged short remittance of toll determined on the basis of original weekly remittance plus enhancement amount which is, per se, illegal and violative of Article 14 and 19(1)(g) of the Constitution of India. Petitioner relied upon the following decisions:- (1) M.P. Power Management Co. Ltd. v. Sky Power Southeast Solar India (P) Ltd. , reported in (2023) 2 SCC 703 . (2) Assistant General Managers & Ors. v. Radhe Shyam Pandey, reported in (2020) 6 SCC 438 . 14. Per contra, Mr. Piyush Chitresh, A.C. to A.G. opposed the writ application and has submitted that Petitioner is liable for collection of toll until a new User Agency is appointed by the Executing Authority (Road Construction Department). Reliance was placed upon Clause 1.1.1 of tender document and it was submitted that period of collection of toll under the contract was for a period of two years or until the Plaza is handed over to other Collection Agency as per direction issued by Road Construction Department. It was submitted that Petitioner, being conscious about aforesaid terms of the contract, participated in said contract and, at this stage, it is not open for Petitioner to contend that it would not continue the operation of Toll Plaza till new Collection Agency is appointed. It has been submitted that Petitioner was required to deposit weekly remittance of toll as per Agreement No. 01/RFP/2021-22 dated 15 th June, 2021 including subsequent enhancement, and, since Petitioner failed to discharge the entire liability, impugned demand has been rightly raised against Petitioner. 15. Regarding payment of administrative and operational expenses including supervision and service charges incurred by Petitioner for collection of toll, it was submitted that Petitioner cannot be paid the said amount and its claim to that effect is not sustainable. 16. 15. Regarding payment of administrative and operational expenses including supervision and service charges incurred by Petitioner for collection of toll, it was submitted that Petitioner cannot be paid the said amount and its claim to that effect is not sustainable. 16. Further, with regard to relieving of Petitioner, it was submitted that Executing Authority i.e. Road Construction Department is in the process of finalizing of new Collection Agency and immediately thereafter Petitioner would be directed to handover the Toll Plaza to new Collection Agency. 17. Having heard learned counsel for the parties, this Court is of the opinion that action of Respondent-authorities, on one hand in not relieving Petitioner from the work of collection of toll and on the other hand demanding from Petitioner remittance of installment towards toll as per original Agreement No. 01/RFP/2021-22 dated 15.07.2021, is patently arbitrary and violative of Article 14 of the Constitution of India. A bare perusal of Tender document including Agreement dated 15 th July, 2021 would reveal that tender was invited for appointment of User Fee Collection Agency, wherein user fee/toll rights was transferred to Petitioner for a period of two years commencing from 16.07.2021 to 16.07.2023. The agreement specifically mentioned period of contract for two years and it was further clearly mentioned that in case of urgency, authority reserves the right to extend the period upon mutual agreement but limited to six months. 18. The stand of Respondent-State of Jharkhand that in terms of clause 1.1.1 of the tender document, contract period was for a period of two years or until the Plaza is handedover to other Collection Agency, is completely misconceived. Clause 1.1.1, which provides that contract period would be for two years or until the Plaza is handed over to other Collection Agency is merely as stop gap arrangement for administrative convenience and the same cannot override the specific terms and conditions of the contract, which provided that contract period would be for two years and can be extended for a further period of six months only with mutual consent. The purpose of clause 1.1.1 was to facilitate handing over and taking over of Toll Plaza after expiry of the contract period of two years, but said clause cannot, by any stretch of imagination, be invoked by Respondent-authorities for compelling Petitioner to continue with the work of collection of toll despite end of contract period and unwillingness shown by Petitioner to carry out the activity of toll collection. 19. It is an admitted fact that contract period expired on 16 th July, 2023 and, thus, thereafter the status of Petitioner would be only of an Agent of the Executing Authority i.e. Road Construction Department and Petitioner can, at best, be directed to remit the actual collection amount of toll from Toll Plaza. 20. This court is of the further opinion that after 16.07.2023, since Petitioner did not give consent for extension of period of contract and status of Petitioner was merely of an Agent of the Executing Authority, Petitioner is also entitled for re-imbursement of actual administrative and operational expenses including supervision and service charges incurred by it for collection of toll. 21. From the records of the case, it further transpires that Petitioner, on several occasions, requested Respondent-authorities to relieve the Petitioner from Toll Plaza, but as yet, Petitioner has not been relieved. It was pointed out by counsel for the State that tender has already been invited for selection of new User Fee Collection Agency and Petitioner would be relieved as soon as new Agency is appointed. This court is of the opinion that Petitioner cannot be indefinitely compelled to act as an Agent of the Executing Authority in terms of Jharkhand Highways Fee (Determination of Rates and Collection) Rules, 2011. 22. In view of aforesaid facts and balancing the interest of Petitioner as well as Executing Agency, this court is of the opinion that a reasonable time may be granted to the State for taking over the Toll Plaza keeping in view larger public interest. Accordingly, following directions are issued by this court:- (i) Impugned letter no. 22. In view of aforesaid facts and balancing the interest of Petitioner as well as Executing Agency, this court is of the opinion that a reasonable time may be granted to the State for taking over the Toll Plaza keeping in view larger public interest. Accordingly, following directions are issued by this court:- (i) Impugned letter no. 1472 dated 28 th November, 2024 issued by Respondent No.4-Executive Engineer, Road Division, Saraikela demanding alleged short remittance of toll from Petitioner in respect of Kandra-Chowka Toll Plaza (Gidibera Toll Plaza) is hereby quashed and set aside and it is declared that after expiry of the period of contract pursuant to Agreement No. 01/RFP/2021-22, Respondent-State of Jharkhand is only entitled to receive payment of actual collection of toll. (ii) Petitioner is further entitled to receive the amount incurred by it towards administrative and operational expenses as well as supervision and service charges. Since determination of the said amount involved factual adjudication, this Court is granting liberty to Petitioner to file representation before Respondent No.2 for which Petitioner shall make representation before Respondent No.2, and, Respondent No.2 shall consider the representation of Petitioner and shall pass appropriate order in accordance with law within a period of 8 (eight) weeks from the date of receipt/production of copy of this order. (iii) In the event Petitioner is aggrieved by the decision of Respondent No.2 regarding determination of aforesaid amount, Petitioner would be at liberty to take recourse of law as admissible to it. (iv) Since contract period has already expired on 16 th July, 2023 and Petitioner has not been relieved as yet, it is, hereby, directed that Petitioner shall be relieved from the work of User Fee Collection Agency in respect of Kandra-Chowka Toll Plaza (Gidibera Toll Plaza) within a period of 8 (eight) weeks from the date of this order or finalization of new User Fee Collection Agency, whichever is earlier. 23. With the aforesaid observations and directions, the writ petition is disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs. Pending I.As., if any, also stands disposed of.