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2025 DIGILAW 621 (TS)

M. Seetha Ramulu v. State of A. P.

2025-05-02

ABHINAND KUMAR SHAVILI, TIRUMALA DEVI EADA

body2025
JUDGMENT : (Tirumala Devi Eada, J.) This is an appeal filed by the appellant – plaintiff, being aggrieved by the judgment and decree, dated 18.07.2005 passed in O.S.No.09 of 1999 by the learned I Additional District Judge at Nalgonda (for short “the trial Court”). 2. The parties are addressed herein as they were arrayed in the suit before the trial Court for the sake of convenience and clarity. 3. The case of the plaintiff before the trial Court is that the Chief Engineer, R & B has called for sealed tenders for the auction of tollgate collection at Wadapally for two years from 01.04.1998 to 31.03.2000 and that the plaintiff alongwith others have submitted tenders in a sealed cover and also that the plaintiff has deposited Rs.20,75,000/- for taking part in the bid and since he was the highest bidder he was given the tender @ Rs.7,87,500/- per month. Then, the R&B Department vide G.O.Rt.No.345/ Transport Roads and Buildings (road III) Department has accepted the same on 30.04.1998. It is also his case that he has deposited an amount of Rs.10,75,000/- with the Government as per Rule 20 of G.O.Ms.No.570, accordingly, the lease was executed on 21.05.1998 between the plaintiff and the Executive Engineer, PWD, R & B, Miryalguda and the period of operation was between 22.05.1998 to 31.03.2000. The tollgate was accordingly handedover to the plaintiff on 22.05.1998 and that he started collecting the toll and also paid the monthly lease amount but in the month of July, 1998 the vehicular traffic decreased as the vehicles bound for the areas towards South like Guntur, Ongole and Madras etc., opted to travel via N.H.W.No.9 instead of Tipparthi Wadapalli road, on account of the work going on the said road at several places by the highway project authorities to lay down a wide and perfect road from Narketpalli to Addanki with the World Bank funds. It is his case that the authorities have not informed him about the said highway project though it was notified prior to the auction of tollgate and that ignorant of the said fact, he has floated the tender and thus, he started sustaining losses. 4. Thus, sensing the said loss, he had addressed a letter to Executive Engineer, R&B, Miryalguda on 03.08.1998 informing him about the situation, but there was no response. 4. Thus, sensing the said loss, he had addressed a letter to Executive Engineer, R&B, Miryalguda on 03.08.1998 informing him about the situation, but there was no response. Further, he has addressed letters on different dates till 12.05.1999 and finally, he gave a representation on 01.06.1999 to the Chief Engineer, R & B, Hyderabad who in turn has called for a detailed report from the Superintendent Engineer, R&B, Rural Circle, Hyderabad who has again addressed the issue to the Executive Engineer, Miryalguda to offer his remarks in the matter, thereupon, the Executive Engineer, Miryalguda has sent a report and in the said report it was mentioned that the plaintiff has not paid the rentals for the months of April and May, 1999 due to the damage of road and that the traffic was declined by 47.21% on the said route. It is also mentioned in the said report that the plaintiff is not entitled to any remission as per the terms of the contract. 5. Thereafter, the Executive Engineer issued a demand notice on 03.06.1999, 22.06.1999 and a final notice on 26.07.1999 asking him to pay Rs.17,87,500/- by 31.07.1999 towards rental dues, failing which the department would take over the possession over the toll gate and also that the EMD deposited by the plaintiff would be forfeited. Then the plaintiff filed a Writ Petition No.16188 of 1999 before the High Court with a prayer to direct the Government to grant 47.21% remission in the monthly rents from 01.08.1998 and to adjust the amounts so remitted in the arrears as well as the future monthly lease amount. The said Writ Petition was dismissed on 02.08.1999 with an observation that he shall pursue his remedies before the competent civil Court. Subsequently, the plaintiff paid Rs.2,87,500/- to the Government on 12.08.1999 out of fear that he may be evicted from the toll point. His contention is that the clause-12 of the agreement contemplates eventualities like strikes, bandhs, curfew and other natural calamities or any other hindrance of the like nature but it does not contemplate the impact caused by any action of the Government. His contention is that the clause-12 of the agreement contemplates eventualities like strikes, bandhs, curfew and other natural calamities or any other hindrance of the like nature but it does not contemplate the impact caused by any action of the Government. His contention is that the proviso to Rule 47 of the AP Roads and Tolls Rules , 1975 confers powers upon the Government or person or authority authorized by the Government in that behalf to grant remission in the lease amount, if the lessee proves to the satisfaction of the Government. Thus, he filed the present suit seeking remission of 47.21% in the rental due to decreased vehicular traffic and also seeking injunction against the defendants as to not to evict him from the toll gate. 6. Defendant No.4 filed written statement which was adopted by defendant Nos.1 to 3 contending that at Clause No.20.1 of the tender schedule it is mentioned that the tenders will be accepted only on paying the EMD for Rs.20.75 lakhs but the plaintiff has filed a writ petition vide WP No.4575 of 1998 before the High Court praying not to insist on the payment of EMD, on the plea that he belongs to Waddera Community and as per the interim direction granted in favour of the plaintiff, he was allowed to participate in the public auction on 06.02.1998 without there being any EMD and therefore, the claim of the plaintiff that he has paid EMD at the time of bid is incorrect. The admitted fact is that he being the highest tenderer valued @ Rs.189 Lakhs and as per Clause No.20(1) of tender notification, he was asked to remit two months advance rents. Thereafter, the plaintiff has deposited an amount of Rs.20.75 lakhs and balance of Rs.10.75 Lakhs is to be paid at the time of agreement as security deposit and additional security deposit. The said amount was adjusted towards the lease amount of the last four months for the contract i.e. from December, 1999 to March, 2000. They also admitted about the lease agreement dated 21.05.1998 and also that the plaintiff agreed to pay Rs.7,87,500/- per month towards the rent of toll gate and also that it was handedover on 22.05.1998 to the plaintiff. They also admitted about the lease agreement dated 21.05.1998 and also that the plaintiff agreed to pay Rs.7,87,500/- per month towards the rent of toll gate and also that it was handedover on 22.05.1998 to the plaintiff. It is further contended by the defendant that the road work from Nareketpalli to Addanki was started prior to the notification of the tender and the plaintiff was fully aware of the said fact and offered the highest bid. They further contended that as per Clause No.12 of the agreement and clause No.11 of the tender condition, no remission or abatement of the lease amount shall be allowed on any account subject to the provisions prescribed in the Rule 47 of G.O.Ms.No.570. When they have issued notices to the plaintiff to pay the due amounts, the plaintiff approached the High Court by filing a writ petition No.16188/1999 and it was dismissed at the stage of admission with an observation to seek remedies in the Civil Court. 7. During the pendency of the suit, against the orders of the Court in I.A.No.1537 of 1999, the department has filed an appeal before the Hon’ble High Court and in the appeal the High Court has directed the plaintiff to furnish bank guarantee of Rs.18,92,782/- within a period of three weeks from 31.01.2000 and that the plaintiff has submitted the bank guarantee and continued to be in the possession of toll gate, till the expiry of lease period. But he did not pay the installments for the months of January to March, 2000 and interest there on by taking advantage of the stay orders of the Court. The defendant has further submitted that the plaintiff has filed another writ petition No.5344 of 2000 for allowing the toll gate collections to continue for a period of 51 days beyond 31.03.2000 and the said writ also was dismissed on the representation of the plaintiff that it has become infructuous. 8. Based on the above pleadings, the trial Court has framed the following issues for trial. “1. Whether the plaintiff is entitled for any remission in the monthly rentals due to excavation of the road from Tipparti to Wadapalli and diminution of the traffic? 2. Whether the defendants are not entitled to cancel the tender of the plaintiff and take possession of the toll gate collection for default of the plaintiff in paying the rentals? 3. “1. Whether the plaintiff is entitled for any remission in the monthly rentals due to excavation of the road from Tipparti to Wadapalli and diminution of the traffic? 2. Whether the defendants are not entitled to cancel the tender of the plaintiff and take possession of the toll gate collection for default of the plaintiff in paying the rentals? 3. Whether the plaintiff paid earnest money deposit at the time of his participation in the public auction? 4. Whether the plaintiff is entitled for declaration and injunction as prayed for? 5. Whether the plaintiff is out of possession during the pendency of the suit and as such, the suit is infructuous? 6. To what relief?” 9. At the time of trial, PWs 1 to 4 were examined and Exs.A1 to A20 were marked. On behalf of the defendants, DWs 1 to 3 were examined and Exs.B1 to B6 were marked. Based on the evidence on record, the trial Court has dismissed the suit with costs. Aggrieved by the said judgment and decree, the present appeal is preferred by the plaintiff. 10. Heard the submissions of Sri Aditya Vemparala, learned counsel for the appellant and learned Government Pleader for the respondents. 11. The learned appellant counsel has submitted that the judgment and decree is contrary to law and the evidence adduced before it. He further argued that the trial Court ought to have seen that even as per the pleadings, the excavation of the road from Tipparthi to Wadapalli was being taken up by the National Highway Authorities, which has reduced the vehicular traffic on the said road and thus, caused loss to the plaintiff in toll gate collection and that the Government was very much empowered to grant remission of his rental amounts but the trial Court has erroneously dismissed his suit based on the clause No.12 of the Ex.A1. He further argued that the plaintiff has approached the trial Court based on the directions of the High Court in W.P.No.16188 of 1999 and that the trial Court ought not to have dismissed the suit. He therefore, prayed to set aside the judgment and decree of the trial Court by allowing his appeal. 12. He further argued that the plaintiff has approached the trial Court based on the directions of the High Court in W.P.No.16188 of 1999 and that the trial Court ought not to have dismissed the suit. He therefore, prayed to set aside the judgment and decree of the trial Court by allowing his appeal. 12. The learned Government Pleader, on the other hand, has submitted that the trial Court has passed a very well reasoned order and that the Clause No.12 of the lease deed clearly envisages that there will not be any remission or abatement of lease amount and that the plaintiff cannot go beyond the terms of lease agreement. He further argued that the trial Court has appreciated the entire evidence on record and has delivered a reasoned judgment and therefore, prayed to uphold the same. 13. Based on the above rival contentions, this Court frames the following points for consideration: 1) Whether the plaintiff is entitled to remission of 47.21% rentals with regard to the plaint schedule toll gate? 2) Whether the plaintiff is entitled for a declaration against the defendants that that the defendants cannot collect any amount from the plaintiff in future as mentioned in their notice dated 26.07.1999? 3) Whether the judgment and decree of the trial Court is sustainable in law and under the facts? 4) To what relief? 14. POINT NOs.1 AND 2 a) The admitted facts in this case are that the plaintiff participated in the tender notification issued by the defendant and stood as a successful bidder and a lease agreement was entered into with the defendant. Ex.A1 is the lease agreement dated 21.05.1998. The recitals reveals that the toll gate shall be handedover from 0.00 hours of 22.05.1998 to 31.03.2000 to the plaintiff and that the plaintiff shall collect the toll fee from the vehicular traffic and pay the rentals i.e. @Rs.7,87,500/- per month to the Government. b) It is the case of the plaintiff that he suffered loss because the collections fell down drastically as the vehicular traffic got reduced from Narekpalli to Addanki as there was road excavation work going on by the National Highway authorities for widening the road and thus, he has addressed a letter to the defendant seeking remission in his rental amount. When he has not received any reply, he went on addressing the letters, which are filed under Exs.A2 to A11 on different dates till 12.05.1999 seeking a remission of 50% of rentals to be paid by him to the Department. c) While so, the Engineer-in-Chief has communicated the representation of the plaintiff dated 01.06.1999 to the Superintendent Engineer (R & B) Rural Circle, Hyderabad to send a detailed report in the matter, which is filed under Ex.A12. Ex.A13 is the letter dated 22.06.1999 addressed by the Executive Engineer to the Superintendent Engineer, R & B circle, wherein he has mentioned that the Deputy Executive Engineer, sub-division, Miryalguda has reported that the AP State Highways project has commenced the work from July, 1998 and due to brisk activity on the road from Tipparthi to Wazeerabad, the traffic movement is badly effected i.e. mainly due to the excavation on the existing road surface and CD works at many places, with the result, the most of the traffic is moving on N.H.9 and collection of toll gate is badly affected. It is further mentioned by the Executive Engineer that as per the conditions in the agreement, the department is not responsible and the contractor cannot claim any compensation on account of the strike, bandh and other natural calamities etc., and that the collection records of the toll gate station has been verified by the Deputy Executive Engineer from 14.06.1999 to 20.06.1999 and that the vehicular traffic has declined by about 47%. d) The argument of the appellant counsel is that taking into consideration this report submitted by the Executive Engineer, the Government ought to have awarded remission to him, which was not done and thereby he has approached the Court and the Court by relying upon this report, must have allowed his suit. e) It is pertinent to look into Clause-12 of the Agreement under Ex.A1 and the same is extracted hereunder for the sake of convenience and clarity. “12. The Department is not held responsible for any type of strikes, Bundhs, Rasta Roke Curfew or any other hindrances or any natural calamities or for any loss or damage caused to the collection of Tolls at any time during the lease period. “12. The Department is not held responsible for any type of strikes, Bundhs, Rasta Roke Curfew or any other hindrances or any natural calamities or for any loss or damage caused to the collection of Tolls at any time during the lease period. No remission will be given under any circumstances and it is construed that the lessee has kept in his view all such eventualities and no discount of auction amount will be entertained”. f) It is also important to refer to Rule 47 of G.O.Ms.No.570 dated 21.05.1975 to decide this issue and hence, the same is extracted hereunder: “47. No remission or abatement of the lease amount shall be allowed on any account; provided that the Government or any person or authority authorized by them in that behalf may in any cause grant remission or abatement of the lease amount if the lessee proves to the satisfaction of the Government, person or authority, as the case may be, that undue hardship will be caused to him if no remission or abatement of the lease amount is allowed”. g) Thus, from the said Rule, it is clear that there shall not be any remission or abatement of lease amount and that the Government may grant remission or abatement if the lessee proves to the satisfaction of the Government that undue hardship will be caused to him if no remission or abatement of the lease amount is allowed. h) The counsel for the appellant contented that under Rule 47, the Government is empowered to grant remission in his favour and when the Executive Engineer’s report is to the effect that there is 47% reduction in the vehicular traffic, the Government ought to have granted remission in his favour. But, the said remission cannot be claimed as a matter of right. But, the said remission cannot be claimed as a matter of right. i) Ex.A14 is the letter dated 25.07.1999 issued by the Executive Engineer, wherein a final notice is issued to the plaintiff asking him to pay the due amount of Rs.10 Lakhs by the end of 6/99 and the installments for the months of 7/99 for Rs.7,87,500/- which is to be paid by 10.08.1999 and it is also mentioned clearly under Ex.A14 that if the plaintiff fails to pay the said amount by 31.07.1999, the Department shall take over the possession of the toll gate from 0.00 hours on 31.07.1999 without any further notice and also that his EMD shall be forfeited. Subsequently, the plaintiff has extended the two bank guarantees with State Bank of India for Rs.16,92,000/- and Rs.2,00,000/- and the period of said guarantee extended till 18.02.2003 and a receipt to that effect is issued by the Executive Engineer on 22.02.2001, which is under Ex.A19. j) It is elicited during the course of examination of PW1 that the plaintiff has deposited Rs.20,75,000/- as earnest money deposit and Rs.10.75 Lakhs as security deposit at the time of agreement and it is his contention that one of the terms in the tender is that the EMD and the security deposit amounts will be adjusted towards last four monthly installments. It is further elicited through him that as per Clause-14 of the Tender Sheet he has to pay 10% stamp duty on the bid amount to the Government, but he has not paid the same. He further admitted that he did not pay any amount towards EMI for the months of May and June and also that he has not paid the installments as agreed upon from July, 1999 to December, 1999 on the ground that the traffic was reduced because of road widening from Narketpalli to Addanki. He also admitted that the Government preferred appeal against the injunction obtained by him in I.A.No.1537 of 1999 and that after hearing arguments in the said appeal, the High Court directed him to furnish bank guarantee of Rs.18,82,782/- and accordingly, he has furnished the same and continued the contract work and he admitted that he has not paid monthly installments from July, 1999 to March, 2000 as he furnished bank guarantee. He further admitted that as per Clause-12 of the tender agreement the Government is not responsible for the amount to be paid by him in case of occurrence of natural calamities such as Bundh, curfew, strikes or any other hindrances or natural calamities or any loss or damages caused to the collections of toll at any time during the lease period. k) PWs 2 and 3 are the workers under PW1 to collect the toll at Wadapalli bridge. It is elicited in their cross examination that they do not know whether any record was being maintained for the first two months at the toll gate to show as to how many vehicles were plying through Wadapalli bridge for arriving at a conclusion that after two months of contract, the plying of motor vehicles on that route got diminished. l) PW4 is one K.Kotiveera Nagaiah who is into stone polishing business at Damercharla and that his polishing machine is situated by the side of the road and he is well aware about the Wadapalli toll gate. It is elicited during his cross examination that he has not maintained any record to show that the traffic was reduced by more than 40% and he further stated that though pits were present on the road, there was traffic but it was less. m) Thus, the evidence of PWs 2 to 4 is of no avail to the plaintiff to prove his contention that he sustained losses and further to prove that the Government has to give remission to the plaintiff towards the payment of lease amount. n) DW1 is an Assistant Executive Engineer. He admitted during his cross examination that the report given by the Superintendent Engineer is under Ex.A13 stating that there is a traffic reduction by 47.29% from Narketpalli to Addanki and that due to diversion of the traffic, the plaintiff suffered hardships and monetary loss in the above said contract work. It is further elicited in his evidence that since all the tenders are issued through paper publication all the contractors including the plaintiff might have been aware of the tender notification with regard to widening of Addanki to Nareketpalli road. It is further elicited during his cross examination that the plaintiff is also doing road works in R & B and Panchayathraj Departments and that earlier he was a road contractor in Devarakonda division. It is further elicited during his cross examination that the plaintiff is also doing road works in R & B and Panchayathraj Departments and that earlier he was a road contractor in Devarakonda division. o) A perusal of Exs.B5 and B6 reveals that the notification with regard to the Addanki road was published in Eenadu daily news paper on 22.08.1996. DW2 is the Deputy Executive Engineer of Miryalguda Division, through him Ex.B5/the attested copy of invitation for pre-qualification dated 20.08.1996 and Ex.B6 the paper publication with regard to the Nareketpalli to Addanki road are filed. p) Thus, an overall perusal of the evidence on record discloses that the plaintiff has approached the authorities through his letters seeking remission of lease amount but the authorities have refused the same in view of clause No.12 of the lease agreement read with Rule 47 of G.O.Ms.No.570, dated 21.05.1975, which is elicited from Ex.A1 and the said decision of the Department was also communicated to the plaintiff. The rule makes it clear that he is not entitled to any remission as of right. There is only a proviso under Rule 47 vide G.O.Ms.No.570, dated 21.05.1975, wherein the Government may examine the issue provided the plaintiff putsforth its case up to the satisfaction of the Government, then remission may be done. The said representation of the plaintiff was considered and rejected by the department. q) Therefore, in view of the said rule position, it is held that the plaintiff is not entitled to remission of 47.21% rentals of the plaint schedule toll gate and consequentially, he is not entitled to seek any declaration against the defendants not to collect any further amounts from the plaintiff in future. r) With regard to the second relief that was sought by the plaintiff before the trial Court i.e. injunction restraining the defendants from evicting him from the toll gate it becomes infructuous, as the said lease period is also terminated by 2000 and the appellant counsel has fairly admitted that the plaintiff has not continued collection at the toll gate beyond the lease period. So the question of answering the said plea of the plaintiff does not arise. Point Nos.1 and 2 are answered accordingly. 15. So the question of answering the said plea of the plaintiff does not arise. Point Nos.1 and 2 are answered accordingly. 15. POINT NO.3: In view of the reasoned findings arrived at point No.1, it is held that the judgment and decree passed by the trial Court are found to be well reasoned and the same do not need any interference and are thus held to be sustainable in law and under the facts and circumstances of the case. 16. POINT NO.4: In the result, the appeal is dismissed upholding the judgment and decree, dated 18.07.2005 passed in O.S.No.09 of 1999 by the learned I Additional District Judge at Nalgonda. No costs. Miscellaneous Applications, if any, pending in this appeal shall stand closed.