CWP No. 7467 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 7467 of 2010 Date of Decision: 27.08.2010 Harender Singh ...Petitioner Vs. The State of Haryana & Ors. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.A.K.Chopra, Senior Advocate, with Mr.Harminder Singh, Advocate, for the petitioner. Mr.Deepak Jindal, DAG, Haryana. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral) The petitioner by invoking the writ jurisdiction of this court has challenged the order dated 16.03.2010 passed by the Chief Executive Officer Zila Parishad-cum-Additional Deputy Commissioner, Yamunanagar, (Annexure P.21) which reads as under:- “ In compliance to the order dated 18.11.2009, passed in CWP No. 7467 of 2010 2 C.W.P. No.17764 of 2008 by the Hon'ble Punjab and Haryana High Court at Chandigarh, a detailed show cause notice has been served upon you vide memo No.ZPY/2W010/3180 dated February, 2010 which contained the necessary legal points and grounds for cancellation of the auction dated 14.6.2008 by Panchayat Samiti, Jagadhri and further you were informed that you will also be afforded one effective opportunity of personal hearing by the undersigned. You were further requested to raise all legal objections/grounds enabling the undersigned to review the order in the light of the judgment dated 18.11.2009, passed by the Hon'ble Punjab and Haryana High Court at Chandigarh. Thus a letter dated 11.01.2010 to attend this office on 27.01.2010 had been received by you and you had sent a reply to the letter on 25.01.2010 through Sh. Satinder pal Dhanda, Advocate, Jagadhri wherein it had been mentioned by you in the concluding paragraph that you could not attend the office on health grounds and the doctor had advised you to take ten days rest and further you requested for the grant of another ten days time for personal hearing. This request made by you was accepted by this office though the limitation for pronouncing the order was fleeting. However, you were also afforded a personal hearing in my office on 05.03.2010 wherein the entire pleas, contentions and defiance qua the cancellation were patently and minutely perused and heard by me. CWP No. 7467 of 2010 3 That now nothing remains due for any further consideration in the matter in hand and the entire points raised by you have been duly considered by me. However, the brief facts are that the Panchayat Samiti, Jagadhri had sent the proposal for the purpose of collection of toll tax on Yamuna river bridge at Kalanaur with regard to the loaded vehicles with wood/timber passing through this bridge. The predecessor of this office had given an approval for this collection vide office letter No.1789 dated 05.10.2007 up to 31.03.2008 only but the same was not implemented. Subsequent thereto, the Panchayat Samiti, Jagadhri, without obtaining any further necessary approval of the CEO, Zila Parishad auctioned the Yamuna river bridge at Kalanaur on 14.06.2008 for a period of three years for an amount of Rs.451000/- per year. Being the highest bidders the auction had been released in your favour and the matter was further sent to this office for approval and that too at the belated stage. In fact the approval ought to have been obtained before the implementation of such auction. Therefore, this auction had been cancelled keeping in view the entire reasons mentioned in the detailed order dated 20.08.2008. You resisted against this order. However, the undersigned after having considered Section 97 of the Haryana Panchayati Raj Act, 1994 and the entire facts and circumstances gave an opportunity of personal hearing to you but you could not satisfy the auction of CWP No. 7467 of 2010 4 Panchayati Samiti and since there were glaring mistakes in the said auction and total violation of the relevant provisions of the act mentioned above. Therefore, after passing a detailed order as described above, the auction had been annulled. Those reasons and grounds are reproduced here-in-after:- It was also observed that there was absolute violation of Section 97 of the Haryana Panchayati Raj Act, 1994 and not only this various other violations were also detected. As such finding the said auction to be absolutely illegal, the auction so made was cancelled vide office order dated 20.08.2008 duly conveyed to you. That feeling aggrieved against this order, you moved a writ petition mentioned above before the Hon'ble Punjab and Haryana High Court at Chandigarh and the Hon'ble Court had set aside the order passed by this office dated 20. 8.2008 and issued directions to this office to again issue a show cause notice delineating the entire grounds for the proposed action giving an opportunity of not less than 15 days to you for filing the reply to the show cause notice. As detailed above, a detailed show cause notice had been issued to you vide memo No.3180 dated 01.02.2010 and you filed your reply to the said show cause notice on 16.02.2010. I also afforded you an opportunity of personal hearing on 05.03.2010. That all the points raised by you have been carefully and meticulously considered by me. I have also carefully perused CWP No. 7467 of 2010 5 your reply dated 16.02.2010 which you had filed against the show cause notice. Apart to this, there was nothing on your side to be heard or contended or considered. Hence I am of the opinion that you have miserably failed to make out a reason in your favour for allowing you to continue with the collection of tax at Kalanaur Bridge from loaded vehicles with wood and timber as the entire points raised by you were found to be vague, unfounded, and without any merit as per the provisions of law. However Section 97 of the Haryana Panchayati Raj Act, 1994 clearly mandates about the violation. Moreso the Panchayat Samiti has no power to put the Yamuna Bridge to auction to collect the toll tax as road/bridge where the toll tax was proposed to be levied is a National Highway No.73 and it falls within the jurisdiction of National Highways Authority of India, therefore, the Panchayat Samiti has acted beyond its jurisdiction as the said bridge and road certainly does not fall within the above said scope of Panchayat Samiti in any manner. As such the Panchayat Samiti had no legal authority to levy the toll tax on the loaded vehicles carrying wood/timber crossing through the constructed Kalanaur Bridge (Pucca) on the river Yamuna. Apart to it the Kalanaur Bridge connects both the States that is Haryana and Uttar Pradesh, and as such the entire expenditure have been borne by the Central Government. The auction so done by the Panchayat Samiti fails to stand the legal test under Section 97 of the Haryana Panchayati Raj Act, 1994 CWP No. 7467 of 2010 6 and therefore, the same must be cancelled. Moreso the auction so made by the Panchayat Samiti was without obtaining a prior permission of the office. Thus, it is void ab-initio and further consider it to be against public interest. Hence, I Narinder Singh, HCS, Additional Deputy Commissioner-cum-Chief Executive Officer, Zila Parishad, Yamuna Nagar cancel the auction made by the Panchayat Samiti dated 14.06.2008 and any other proceeding carried out in continuance to this auction is also hereby cancelled being void ab-initio. Hence my order is detailed above.” The order referred to above has been challenged by the petitioner on the following grounds:- Firstly, that the impugned order was passed in utter disregard to the letter and spirit of directions given by this court. The contention of Sh. A.K. Chopra, learned. senior counsel for the petitioner was, that this court in CWP No.17764 of 2008 had set aside the order dated 20.8.2008 by passing the following order:- “There is substance in the contention of Mr. Chopra, learned counsel for the petitioner. Without going into the merits of the controversy and the respective contentions of the parties, this petition is allowed. The impugned order is hereby set aside and the matter is remitted back to the Chief Executive Officer, Zila Parishad, Yamuna Nagar to issue a detailed show cause notice to the petitioner delineating the grounds for the proposed action CWP No. 7467 of 2010 7 and give opportunity of not less than 15 days to the petitioner to reply the same. The Chief Executive Officer after receiving the reply will also afford opportunity of personal hearing to the petitioner. It shall be open to the petitioner to raise all possible grounds including the jurisdiction of the Chief Executive Officer. On receipt of the reply and after affording opportunity of hearing to the petitioner, the Chief Executive Officer will pass a fresh order within a period of two months from today. The entire process shall be completed within two months. The right of the petitioner to execute the contract shall depend upon the outcome of the order that may be passed by the Chief Executive Officer.” This contention of the learned senior counsel for the petitioner deserves to be noticed to be rejected, as the reading of the impugned order shows that the contentions raised by the petitioner, were met, and a well reasoned order passed. Merely because in the order it has been mentioned that the auction was cancelled keeping in view the reasons mentioned in detail, the order dated 20.8.2008 cannot be said to mean, that the authorities proceeded on the presumption that the order is still in force. The second ground of challenge, that the impugned order was cryptic, non-speaking, vague, and passed with pre-determined mind, is also misconceived, as good and valid reasons have been given to cancel the auction. Thirdly, the learned senior counsel for the petitioner contended, CWP No. 7467 of 2010 8 that the observations made in the impugned order were self- contradictory as it is mentioned in the order, that the predecessor-in- office had given approval for collection (tax) vide office letter No.1789 dated 5.10.2007 upto March 31, 2008, whereas in the later part, it has been mentioned that auction was conducted by the Panchayat Simiti, without obtaining prior permission of Chief Executive Officer of Zila Parishad. This contention again cannot advance the case of the petitioner, as the reason for cancelling the auction is want of jurisdiction of the Zila Parishad to collection of toll tax, over the bridge on the National Highways. Fourthly, the contention of the learned senior counsel for the petitioner was, that the impugned order, was outcome of misreading of word Ferries in Section 97 of the Haryana Panchyati Raj Act. Section 97 of the Haryana Panchyati Raj Act reads as under:- “Power to lease the collection of fees or tolls and management of fairs etc. - The collection of fees or tolls, levied at fairs other than cattle fairs, agricultural shows, industrial exhibitions, markets, Tonga stands, ferries or rest houses or the management of such fairs, shows, exhibitions, markets, Tonga stands, ferries or rest houses may, with the previous sanction in writing of the Chief Executive Officer concerned be leased by a Panchayat Samiti for a period not exceeding three years, and the lessee and all persons employed by him for the collection of such fees or tolls or for the management of such fairs, shows, exhibitions, markets, Tonga stands, ferries or rest houses shall in respect thereof - CWP No. 7467 of 2010 9 (a) be bound by any order made by the Panchayat Samiti for their guidance; (b) have such powers exercisable by officers of Panchayat Samiti under this Act as the Panchayat Samiti may, from time to time, confer upon them; and (c) be entitled to the same remedies and subject to same responsibilities as if they were employed by Panchayat Samiti for the collection of fees or tolls or for the management of such fairs, shows, exhibitions, markets, Tonga stands, ferries or rest houses.” The contention of the learned senior counsel was, that the Chief Executive Officer misread the provisions of Section 97 of the Act, to record that the Panchayat Samiti had no jurisdiction to auction the toll tax. In support of this contention learned senior counsel referred to the definition of ferry as given in the dictionary, which reads as under:- “ Ferry n. (pl. -ies) 1. a boat or aircraft etc. for conveying passengers and goods as a regular service. 2. the service itself or the place where it operates. v.tr. (-ies, - ied) 1. convey in a boat etc. across water. 2. transport from one place to another esp. as a regular service [from Old Norse ferja] ferryman n. (pl.- men)”. This contention of the learned senior counsel again cannot be accepted as the 'use of bridge' cannot be covered under the definition of CWP No. 7467 of 2010 10 'ferry'. Even otherwise, the Chief Executive Officer was right in coming to the conclusion, that the Panchayat Samiti and Zila Parishad did not have any jurisdiction to impose toll tax on National Highways, as it vests with the Central Government and the imposition of toll tax is covered under Section 7 of the National Highways Act, 1956. Section 7 of the National Highways Act, 1956 reads as under:- “7. Fees for services or benefits rendered on national highways – (1) The Central Government may, by notification in the Official Gazette, levy fees at such rates as may be laid down by rules made in this behalf for services or benefits rendered in relation to the use of ferries, permanent bridges the cost of construction of each of which is more than rupees twenty-five lakhs and which are opened to traffic on or after the 1st day of April, 1976 temporary bridges and tunnels or national highways and the use of sections of national highways. (2) Such fees when so levied shall be collected in accordance with the rules made under this Act. (3) Any fee leviable immediately before the commencement of this Act for services or benefits rendered in relation to the use of ferries, temporary bridges and tunnels on any highway specified in the Schedule shall continue to be leviable under this Act unless and until it is altered in exercise of the powers conferred by sub-Section (1): Provided that if the Central Government is of opinion that it is CWP No. 7467 of 2010 11 necessary in the public interest so to do, it may, by like notification ,specify any bridge in relation to the use of which fees shall not be leviable under this sub-Section.” In view of the provisions of Section 7 of the National Highways Act, even if for the sake of arguments, the contention of the learned senior counsel that word ferry would include use of bridge, is accepted, still the Panchayat Samiti and Zila Parishad would not have any jurisdiction to impose toll tax, on the principle of occupied field. The contention of the learned senior counsel, that on the other side of the bridge, Uttar Pradesh Government has levied tax, cannot advance the case of the petitioner, as the jurisdiction to impose tax is to be derived from the statute, and not from the practice followed, which is proved to be illegal. The final contention of the learned senior counsel for the petitioner, that action of the respondent was hit by the principles of promissory estoppel, is also misconceived. The principles of promissory estoppel can be applied to the authority which has the authority to act, but in case the authority itself does not have the jurisdiction to impose tax, then on the principles of promissory estoppel, it cannot be forced to act illegally in contravention of the statute, specially in imposing tax, which is ultimately to be paid by the General Public. Learned senior counsel for the petitioner also contended, that the petitioner will be entitled to refund of amount deposited by him, in CWP No. 7467 of 2010 12 support reference was made to averments made in para No.8 of the writ petition which have not been denied in the written statement. Para No.8 of the writ reads as under:- “8. That respondent no.3 after completing all the requisite formalities, conducted the auction on June 14, 2008 and the petitioner gave the highest bid of Rs.4,51,000/- per year for duration of the auction period i.e. three years. After the completion of the auction proceedings, the petitioner deposited an amount of Rs.2,40,500/- vide Book No.2, receipt No.1 on June 14, 2008 itself with respondent no.3. Another amount of Rs.3,23,250/- was deposited vide receipt no.2 dated June 16, 2008. After the final bid and depositing of the amount as aforesaid, respondent No.3 vide its letter No.587 dated June 18,2008 addressed to the petitioner, while acknowledging the auction in favour of the petitioner, it was acknowledged that the amount of first year i.e. Rs.4,51,000/- and 1/4th amount of Rs.1,12,750/- for next year i.e. 2009 and 2010 have been deposited by the petitioner in the Panchayat fund. It was further stated that the yearly increase of 25% would be from next year and therefore the amount of contract of three years comes to Rs.17,19,437/-. The contract/lease in favour of the petitioner was approved and the petitioner was allowed to start the work of imposition of tax. A true translated copy of the letter dated June 18,2008 is annexed hereto as Annexure P/9. Respondent No.3 vide its letter dated June 25,2008, informed about the CWP No. 7467 of 2010 13 auction held in favour of the petitioner to Deputy Commissioner, Yamuna Nagar, Police Commissioner, Yamuna Nagar, Chief Executive Officer, Zila Parishad and Additional Deputy Commissioner, Yamuna Nagar, Block Development and Panchayat Officer, Yamuna Nagar, Sub Division Officer, Yamuna Nagar and Police Incharge Sadar (Pansara), Yamuna Nagar. A copy of this letter was also endorsed to the petitioner. A true translated copy of the letter dated June 25, 2008 is annexed hereto as Annexure P/10.” There is force in this contention of the learned senior counsel. The auction has been cancelled for want of jurisdiction, with the respondents/Panchayat Samiti and Zila Parishad to impose toll tax on National Highways. It was, therefore, obligatory for the respondents to refund the amount deposited, by the petitioner as auction money. The respondents cannot enrich themselves for their own wrong. For the reasons stated above, while dismissing the writ petition, the respondents are directed to refund the amount deposited by the petitioner, within 15 days of receipt of certified copy of the order. In case the amount is not refunded within the period stipulated, the petitioner would be entitled to interest at the rate of 8% per annum, from the date of deposit of amount till its refund. No costs. 27.08.2010 (Vinod K.Sharma) rp Judge