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2025 DIGILAW 538 (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 the Petitioner praying therein for following reliefs:- (a) For issuance of an appropriate writ, order or direction, for quashing/setting aside the Letter No.693 dated 14.06.2024 (Annexure-17) issued by Executive Engineer, Road Division, Saraikela (Respondent No.5) wherein for the period 11.03.2022 to 03.10.2023 an alleged shortage of remittance of toll has been determined by Respondent No.5 in respect of Kandra Junction Toll Plaza, (Adityapur-Kandra Section) on the enhanced rate of toll, despite the fact that contract period has already expired on 11 th September, 2021 (at 8.00 Hrs.); (b) For issuance of further appropriate writ, order or direction, including writ of declaration, declaring the action of respondent-State of Jharkhand of unilateral enhancement of the amount of contract value being the total instalment amount, is wholly illegal and arbitrary, as said unilateral enhancement was undertaken by Respondent-authority completely contrary to the terms and conditions of the contract agreement vide Agreement No. 01/RFP/2019-20 (Annexure-2) pertaining to Kandra Junction Toll Plaza (Adityapur-Kandra Section); (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/2019.20 which was finally expired on 11.03.2022, the status of the petitioner qua the toll collection a Kandra Junction Toll Plaza (Adityapur-Kandra Section) 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 respondent-State of Jharkhand, post expiry of the period of contract entered by it with Petitioner vide Agreement No. 01/RFP/2019-20 i.e.11 th March, 2022 (at 8.00 Hrs.) till 3 rd October, 2023 being the date of relieving of the petitioner from Toll Plaza pertaining to Kandra Junction Toll Plaza (Adityapur-Kandra Section), is only entitled to receive payment of actual collection of toll from the Petitioner less toll, administrative and operational expenses plus supervision and service charges incurred by petitioner for collection of toll, especially because respondents, contrary to the terms of agreement, have unilaterallyextended the period of the contract for toll collection despite protest being made by Petitioner. (e) 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. (e) 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. Brief facts of the case, as evident from the records, is that Road Construction Department, being an Executing Authority under Rule 2(f) of Jharkhand Highways Fees (Determination of Rate and Collection), Rules, 2011 published Notice Inviting Tender(NIT) dated 10.06.2019 primarily for appointment of User Fee Collection Agency for Kandra Junction Toll Plaza, Adityapur-Kandra Section. 3. Petitioner participated in aforesaid tender process and, having been declared as the Highest Bidder, was awarded work in questionand an agreement videAgreement No.01/RFP/2019-20 was executed between Petitioner and Executing Authority (Road Construction Department) which was valid for a period of two years having date of commencement from 11.09.2019 to 11.09.2021. Under the agreement, provision for extension of contract for a period of six months was provided on mutual consent between the parties, but Executing Authority (Road Construction Department) unilaterally extended the contract of the Petitioner. The extended period of six months expired on 11 th March, 2022, but even thereafter, vide letter no. 519 dated 22.03.2022, the contract was further extended till finalization of new contractor or for a period of three months, whichever is earlier. After issuance of aforesaid letter dated 22.03.2022, even no extension order was issued by Respondents, but, Petitioner was compelled to operate the Toll Plaza up to 3 rd October, 2023 and it is only on 3 rd October, 2023, Petitioner was directed to handover the Toll Plaza to another Collection Agency namely, Vansidhar Electricals Private Ltd. 4. A perusal of the records of the case would reveal that Respondents invited tender 18 times for appointment of User Fee Agency and it is only thereafter that new Agency namely, Vansidhar Electricals Private Ltd. was selected by Respondents and Petitioner was relieved. 5. A perusal of the records would further reveal that Petitioner, on several occasions, wrote letters to Respondents for taking over possession of Toll Plaza, but Respondents did not take over possession of the Toll Plaza up till 03.10.2023. The summary of contract period in a tabulated chart is as under:- Particulars From To Days Original contract 11.09.2019 11.09.2021 730 days Extension of six months 11.09.2021 10.03.2022 180 days Post expiry of Contract 11.03.2022 03.10.2023 576 days 6. The summary of contract period in a tabulated chart is as under:- Particulars From To Days Original contract 11.09.2019 11.09.2021 730 days Extension of six months 11.09.2021 10.03.2022 180 days Post expiry of Contract 11.03.2022 03.10.2023 576 days 6. Thus, it is clear that though the original contract ended on 11.09.2021, and, even if it is presumed that Respondents were entitled to extend the period of contract, said extension could have been granted only till six months i.e. up to 11 th March, 2022, but even thereafter, not only Petitioner was compelled to operate the Toll Plaza, but evendemand towards user fee in terms of original weekly installment under Agreement No. 01/RFP/2019-20 was raised upon Petitioner.Weekly remittance was also unilaterally enhanced by Respondents, and, Petitioner was issued impugned communication contained in Letter No. 693 dated 14.06.2024 issued by Executive Engineer, Road Division, Saraikella, wherein for the period 11.03.2022 to 03.10.2023 alleged shortage of remittance of toll was determined and Petitioner was directed to make payment of the same at enhanced rate. 7. Counsel for the Petitioner vehemently submitted that Petitioner entered into the contract with Executing Agency i.e. Road Construction Department only for a period of two years, which expired on 11 th September, 2021, but Respondents unilaterally extended the period of contract without consent of the Petitioner, till the date of relieving of the Petitioner i.e. up to 03.10.2023 and the action of Respondents is completely illegal and manifestly arbitrary. 8. It was further submitted that for the extended period of contract, Respondents have demanded weekly remittance as stipulated in original agreement including enhanced weekly remittance, which is beyond the authority of Respondents. 9. Reliance was placed upon provisions of Section 2 of Indian Toll (Jharkhand Amendment) Act, 2002 , wherein responsibility of collection of toll is vested uponState of Jharkhand and it is the State which may appear to it proper for the purpose of collection of toll. 10. Further reliance was placed upon provisions of Jharkhand Highways Fee (Determination of Rates and Collection) Rules 2011, particularly Rule 6 thereof, which provides, inter alia, that collection of toll can be carried out by (i) Government,(ii)Executing Authority, (iii) Agent appointed by Executing Authority, or (iv) Concessionaire. 11. Mr. 10. Further reliance was placed upon provisions of Jharkhand Highways Fee (Determination of Rates and Collection) Rules 2011, particularly Rule 6 thereof, which provides, inter alia, that collection of toll can be carried out by (i) Government,(ii)Executing Authority, (iii) Agent appointed by Executing Authority, or (iv) Concessionaire. 11. Mr. PiyushChitresh, A.C. to A.G. appearing for Respondents submitted that the period of contract provided in the tender document vide clause 1.1.1 clearly stipulated that contract shall be for a period of two years or until Toll Plaza is handed over to other Collection Agency. It was further submitted that after expiry of the period of contract, State Government endeavored for appointment of new Collection Agency and even invited tender for about 18 times but it was unsuccessful and, ultimately, one Vansidhar Electricals Private Ltd. was declared as successful bidder and was appointed a User Fee Agency for collection of toll and, accordingly, Petitioner was relieved on 03.10.2023. 12. It was further submitted by the State counselthat Petitioner participated in the tender process with open eyes and was fully aware that it was required to continue with collection of toll until appointment of new User Fee Agency and, thus, Petitioner, at this stage, cannot contend that for the extended period of contract, it is not required to deposit agreed weekly remittance as per original agreement including enhancement thereof. 13. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits, this Court is of the opinion that action of Respondent-authorities in demanding from Petitioner remittance of installment towards toll as per original Agreement No. 01/RFP/2019- 20, is patently arbitrary and violative of Article 14 of the Constitution of India. A bare perusal of the Tender document including Agreement dated 11.09.2019 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 11.09.2019 to 11.09.2021. The agreement specifically mentioned the period of contract for two years and it was further clearly mentioned that in case of urgency, the authority reserves the right to extend the period upon mutual agreement but limited to six months. 14. The agreement specifically mentioned the period of contract for two years and it was further clearly mentioned that in case of urgency, the authority reserves the right to extend the period upon mutual agreement but limited to six months. 14. 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 handover 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 the Petitioner to continue with the work of collection of toll despite end of contract period and unwillingness shown by the Petitioner to carry out the activity of toll collection. 15. Admittedly, contract period expired on 11.03.2022 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 actual collection amount of toll from Toll Plaza. 16. This court is of the considered opinion that after 11.03.2022, 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. 17. In view of aforesaid facts, the following directions are issued by this court:- (i) Impugned letter no. 17. In view of aforesaid facts, the following directions are issued by this court:- (i) Impugned letter no. 693 dated 14.06.2024 issued by Respondent No.4-Executive Engineer, Road Division, Saraikella demanding alleged short remittance of toll from Petitioner in respect of Kandra Junction Toll Plaza, Adityapur- Kandra Section is hereby quashed and set aside and it is declared that after expiry of the period of contract pursuant to Agreement No. 01/RFP/2019-20, 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. However, since determination of the said amount involved factual adjudication, this court is granting liberty to the Petitioner to file representation before Respondent No.2, who 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, he would be at liberty to take recourse of law as admissible to it. 18. 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 standsclosed.