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2025 DIGILAW 991 (JHR)

Mandeepa Enterprises v. State of Jharkhand

2025-04-02

DEEPAK ROSHAN

body2025
JUDGMENT : DEEPAK ROSHAN, J. 1. Present writ application has been filed by petitioner praying therein for following reliefs:- “(i) For issuance of an appropriate writ/order/direction, for quashing/setting aside the Letter No.631 dated 07.06.2024 (Annexure-18) issued by Executive Engineer, Road Division, Chaibasa (Respondent No.4), wherein Petitioner has been directed to deposit the amount of Toll pertaining to Sangajata Toll Plaza (Chaibasa-Kandra Section) as per stipulated rate determined by the Respondent, as being wholly illegal, arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution of India. (ii) For issuance of further appropriate writ/order/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 installment amount, as wholly illegal and arbitrary as said unilateral enhancement has been taken by Respondent-authorities completely contrary to the terms and conditions of the contract agreement vide Agreement No. 01/RFP/2018-19 (Annexure-2) pertaining to Sangajata Toll Plaza (Chaibasa-Kandra Section). (iii) For issuance of further appropriate writ/order/direction including Writ of Declaration declaring that after expiry of period of contract pursuant to Agreement No. 01/RFP/2018-19 which finally expired on 21.06.2021 (at 8.00 Hrs.), the status of the petitioner qua the toll collection at Sangajata Toll Plaza (Chaibasa-Kandra Section) is that of an Agent of Respondent-State of Jharkhand for deploying specified category of personnel and supervise them for collection of USER Fee. (iv) For issuance of an appropriate writ, order, or direction including the writ of Declaration, declaring that Respondent-State of Jharkhand, post expiry of the period of the contract entered by it with Petitioner vide Agreement No. 01/RFP/2018-19 i.e. 21 st June, 2021 (at 8.00 Hrs.) up to the date of relieving/taking-over of Toll Plaza from the Petitioner pertaining to Sangajata Toll Plaza (Chaibasa-Kandra Section), is only entitled to receive payment of actual collection of toll from the Petitioner less Toll Administrative & Operational Expenses + Supervision and Service Charges incurred by Petitioner for collection of toll, especially because Respondents, contrary to the terms of the Agreement, have unilaterally extended the period of the contract for toll collection despite protest being made by the Petitioner. (v) 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. (v) 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 are 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 Sangajata Toll Plaza (Chaibasa-Kandra Section), situated at Chaibasa-Kandra Road, vide N.I.T. dated 10.07.2017. 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/2018-19 dated December, 2018 was executed between petitioner and Executing Authority (Road Construction Department) which was valid for a period of two years from 21.12.2018 till20.12.2020. 4. Although contract period expired on 20 th December, 2020 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. Even if extended period of six months is reckoned, the same also expired on 21 st June, 2021. 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 notices were issued for appointment of new User Agency for collection of toll, but, as yet, no any User Agency has been finalized by respondent-authority. Although respondent-authorities in their counter affidavit stated that petitioner has been relieved from operation of toll collection, but, said fact was disputed in rejoinder affidavit and, during arguments, it was stated that as yet petitioner has not been relieved. 7. Contract period of petitioner can be summarized as under:- Particulars From To Days Original contract 21.12.2018 20.12.2020 730 days Extension as per Clause 2(ii) of the Agreement 21.12.2020 20.06.2021 180 days Post Expiry of Contract 21.06.2021 06.03.2022 259 days Post Expiry of Contract 07.03.2022 Till relieving More than Two years. 8. 7. Contract period of petitioner can be summarized as under:- Particulars From To Days Original contract 21.12.2018 20.12.2020 730 days Extension as per Clause 2(ii) of the Agreement 21.12.2020 20.06.2021 180 days Post Expiry of Contract 21.06.2021 06.03.2022 259 days Post Expiry of Contract 07.03.2022 Till relieving More than Two years. 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/2018-19 dated December, 2018, wherein period of contract was clearly provided for two years from 21.12.2018 till 20.12.2020. 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. 631 dated 07.06.2024, 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. (2023) 2 SCC 703 (2) Assistant General Managers & Ors. v. Radhe Shyam Pandey, (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/2018-19 dated December, 2018 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. 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. 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/2018-19 dated December, 2018, is patently arbitrary and violative of Article 14 of the Constitution of India. A bare perusal of Tender document including Agreement dated December, 2018 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 21.12.2018 till 20.12.2020. 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. Even after the period of six months which deemed to be extended, the same also expired on 21.06.2021. 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 handed over 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 tolls despite end of contract period and unwillingness shown by petitioner to carry out the activity of toll collection. 19. 19. It is an admitted fact that contract period expired on 21 st June, 2021 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 21 st June, 2021, 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 the 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. 631 dated 07.06.2024 issued by respondent No.4-Executive Engineer, Road Division, Chaibasa demanding alleged short remittance of toll from petitioner in respect of Sangajata Toll Plaza (Chaibasa-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/2018-19, 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. (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 the petitioner to file representation before the 2 nd Respondent for which petitioner shall make representation and the 2 nd Respondent shall consider the representation of the 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 the 2 nd Respondent 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 21 st June, 2021 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 Sangajata Toll Plaza (Chaibasa-Kandra Section) 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 stand disposed of.