Bombay High Court
Anand Singh W/O Rk Singh vs Executive Engineer, National ... on 3 May, 2016
Bench: B.P. Dharmadhikari
wp2220.05 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2220 OF 2005
Smt. Anand Singh w/o R.K. Singh,
aged - Major, occupation - Business,
resident of Maiher, Tah. - Satna,
Madhya Pradesh. ... PETITIONER
Versus
1. Executive Engineer,
National Highway Division No. 14,
Nagpur.
2. The Collector, Satna, M.P.
3. The Tahsildar,
Revenue Department,
Maiher, District - Satna, M.P. ... RESPONDENTS.
Dr. Anjan De, Advocate for the petitioner.
Shri M.M. Ekre, AGP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI
P.N. DESHMUKH, JJ.
MAY 03, 2016.
ORAL JUDGMENT ( Per B.P. DHARMADHIKARI, J.)
Heard Shri De, learned counsel for the petitioner and Shri
Ekre, learned AGP for the respondents.
2. By placing reliance upon the Agreement dated 09.06.1993
between the petitioner and the respondents, in relation to recovery of
toll on Borgaon Bridge, Shri De, learned counsel submits that as per
Clause 7, if the bridge remains closed for traffic on account of law and
order situation or act of God or other natural calamities, the petitioner
becomes entitled to rebate as stipulated therein. The bridge could not
be used and toll could not be collected between 31.07.1993 and
07.08.1993 and thereafter from 15.09.1993 and 29.09.1993. This was
on account of All India strike call of Transporters. The petitioner
accordingly claimed rebate for said period. It was also recommended
by the Sub-Divisional Engineer of National Highway, Sub-Division No.
55, Bhandara. In spite of this recommendation, on 08.09.1995, the
petitioner received a demand of Rs.5,61,596, (including interest @
18%) for the period from 01.03.1994 to 30.09.1995. He contends that
thereafter the petitioner submitted reply but without looking into it
and without extending an opportunity of hearing, the impugned order
has been passed on 21.11.1997 i.e. after more than two years.
3. Shri De, learned counsel submits that the period for which
recovery is demanded is not clear. However, if it is for the period of
strike, the claim of the petitioner for rebate ought to have been looked
into. He points out that by impugned order dated 21.11.1997, rebate
claim has been rejected on the ground that no substantial evidence is
submitted by the petitioner regarding temporary closure of bridge. He
invites attention to judgment dated 08.01.2015 delivered by this Court
in Writ Petition No. 3265 of 1999 where an identical notice of same
date was questioned by the Contractor collecting toll and this Court
has remanded the matter for extending appropriate opportunity to the
petitioner.
4. Shri Ekre, learned AGP is relying upon reply affidavit. He
submits that the impugned order clearly points out that the
respondents did not order closure of bridge and the transportation was
also not closed.
5. We find that Sub-Divisional Engineer has on 22.09.1993
submitted a proposal to the Executive Engineer pointing out no
collection of toll between 31.07.1993 and 07.08.1993 and resumption
thereafter from 09.08.1993. This is due to strike of Transport
Association of India.
6. In his later communication dated 19.01.1994 for a period
from 15.09.1993 to 29.09.1993, again he has given same certificate
and pointed out that toll recovery could be resumed on 30.09.1993.
These two letters sent by a responsible officer of Respondent No. 1
constitute evidence on record to show that there could not have been
toll recovery during this period.
7. The RRC sent to the Collector which shows recovery of
Rs.5,61,596/- is dated 08.09.1995. It mentions collection of toll tax at
Borgaon bridge as its subject. However, the period of demand has not
been specified. The notice requests the Collector to recover total
amount of Rs.5,61,596/- (including 18% interest) with effect from
01.03.1994 to 30.09.1995. The period for which the petitioner
could not collect tax, has been mentioned by us supra. Whether the
demand is for the same period or for different period is not very clear.
The period of 01.03.1994 to 30.09.1995 may be the period for which
interest has been calculated but that also is not very clear.
8. In this background, when the impugned order is perused, it
rejects rebate claim of the petitioner on the ground that the petitioner
did not produce substantial evidence regarding temporary closure of
bridge. It is further stated that other mode of transportation, such as
State Transport (S.T.) buses and light vehicles were plying on said
bridge and hence there was only change or variance in traffic pattern
and there was no total closure. It is further pointed out that there was
no order given by the Competent Authority to close down the toll
collection during the said period. As total closure was not established,
the case of the petitioner was treated as one under clause 8 and not
under clause 7.
9. We find this appreciation erroneous and perverse. Two
communications sent by the responsible officer like Sub-Divisional
Engineer are totally lost sight of. In any case, in view of apparent
vagueness in RRC dated 08.09.1995, it is clear that the petitioner
ought to have been given sufficient opportunity in the matter.
10. We, therefore, find it just to adopt the course in the
judgment dated 08.01.2015 in Writ Petition No. 3265 of 1999 supra.
Accordingly, we quash and set aside the impugned order dated
21.11.1997. Respondent No. 1 shall consider the case of the petitioner
in accordance with law and look into two communications sent by the
Sub-Divisional Engineer already noted supra. An opportunity of
personal hearing shall also be given to the petitioner before taking any
decision.
11. The petitioner to appear before Respondent No. 1 for said
purpose on 14.06.2016 and to abide by its further instructions in the
matter. Respondent no. 1 shall attempt to complete the verification
and pass suitable orders afresh within next three months.
12. Writ Petition is thus partly allowed and disposed of. Rule
accordingly. However, in the facts and circumstances of the case,
there shall be no order as to costs.
JUDGE JUDGE
*GS.
