^^^^^^. ^.' -; .^ •^ ^•'' ^•^^ II mE HI6H';GOyiS^Ml CA .ffi-ADSSH JiBALpm< Misc, Petition Ko j_^2^ .Of 1992. PEIII10N Aj ay Siagh» aged about 51 ^e ars , son of Late_Shri Virendra Singh, occupation-Contr actor 9 resident< of H'&Mi ^tM, Baliya (U.Pi), at present Basha, Dlstrict - Raipur (M.R.) ' • • Versus ^ RESPOIDE&Jl'Ss State of Madliya fradesh, •fchrough. s Ttie Secretary, • Dep^rtment of Publtc Morte, Govt. of M.P., Vailabh Bhawan, Bhopal (M<P«)' 2. Superinteziding Engineer, Nalioaal High^yay'Gircle, Publie Morics Oepartment, Raipur (MoP.) 3, SxecativQ BngiaeQr,_National 'j High-way DivisJLon,^ Publie ^ Worlcs DepartBi6nt,"Raipur (MeP*) PE'TIIION UNDSl MIIGLg 226 & 227 <3F THE GONSSI'rUIIDl^- GSi IHDIA. • , . , : '' 5j L^_ ^ \,^^ ,Jl- HIQH COURT OF JUDICATURE CHHATTSSGARH: B!LASPUR (Division Bench) CORAM : Hon'ble Shri A.K. Patnaik, CJ & Hon'bie Shri Sunji Kumar Sinha, J. MSSC. PETmON N0.1526 OF 1992 Ajay Singh Versus •State of Madhya Pradesh (Now Chhattisgarh) and oihers. Present .Mr. Manlndra Shrivasteva, Sr. Advocate with Mrs. Smitha Ghai, learned counsel for the petitioner. Mr. V.V.S. Murthy, (earned Dy. Advocate Genera! with Mr. Sanjay S Agrawai, Govt. Advocate for the State of Chhattisgarh/respondents. A.K. Patnaik, CJ: O RD E R (Passed on 23ra of June 2005} The foJlowing Order of the Court was passed by Qn Natsonal Highway No.6 at Kitometer No.135/2 a permanent bridge was constructed. On 14-02-1992 the Executive Engjneer, NationaJ Highway DSvision, Raipur issued a notice mviting bids for co!!ection of to!l tax. On 13-03-1992 the auction amongst the biddsrs were he!d in which the bid of the petitioner was found to be highest at Rs.46.00 lakhs for one year, and a !ease agreement was executed befrifveen the petitioner and the Executive Engineer on 06-04-1992. In the redta! portion of the leass agreement it was mentioned that under Section 2 of the !ndian To!ls Act, 1851 (for &hort "the Act 1851"} the State Govemment had levied tol! on the aforesaid bridge at the rates specified in the First ScheduJe appended to the !sase agreement and Clause (3) of the said !ease agreement provided that the tolis shall bs 'ev'ed according to the rates fixed by the Stats GQyernment on a!! persons, animals, vehiclss and other things crossing ths bridge other than th.ose which have been exempted or which may be exempted under Section 4 of the Act 1851. The agreement was for a period of one year from Q6/Q4/1992 to 05/Q4/1993. !n ths meanwhi!e, however. the Government of !ndia, Ministry of Surface Transport (Roads Wing) issued a notillcat'on dated 19/02/1992 notilying the Nat'onaS Highways (Fses for use of permanent bridgss) Rules, 1978 (forshort "the Ru!es) made by the Centra! Government under Section 9 of the Nationai HighA^ys Act, 1956. Ru!e 3 of the Rules provided that fees on mechanica! vehicies for the use of the permanent bridges at the rates spec'fied in the Tab!e to the Schedu'e annexed to the Ru'es shal! be ievied and paid^ to the executsvs agency on behalf of the Government of !ndia. The rates of the fees that were specified in the Table to the -Sch9du!e annexed to the Ru!es were higher than those specified in the Sch.9du!e annexsd to ths aforesaid iease agreement entered into between the petitioner and the Executive Engineer. The petitioner ciaimed that he was entitled to coliect the fees at the rates as spscified in the Schedu!e annexed to ths Rules made by ths Centra! Goyemment and not th9 fees at the rates as specified in the -Schedu'e annexed to the !ease agreement. When the said claim of the petitiQner was resjsted by the authorities, the petitioner fi!ed thjs petition under Articie 226/227 of the Constitut'fon of indsa for appropriate relief. 2. Qn 07/05/1992 this Court admitted the writ petition and passed an intQrim order to the effect that until further orders, the petitioner shal! be entitisd to co!!ect tol! tax from the vehides plying on National Highway No.S at Km. No.135/2 at the rates fixed by ths Central Government in the Notsfication dated 19/02/1992 published in the Gazetts of !ndia Extraordinary Part-!! Section 3 sub-section (ii). 3. When the pststsQn was taken up for hearing today, Mr. Manin.dra Shrivastava iearned counsel appearing for ths petitioner submitted that it is not disputed that the concerned bridge at Km. No.135/2 is a permanent bridge iocated in the Nationa! Highway and that the Nationa! Highway Act, 1956 (for short "the Act 1956'} is applicable to the bridge in question. He further submitted that Section 7 of the Act 1956 proyided that the C-entra! Government may, by NotificatiQn !R the Qfficial Qazette, ievy fees at such rates as may be laid down by Ru!es made in this beha'ffor sen/ices or benefits rendered in reiation to the use offerries, permanent bridges the cost of CQnstruction of each of which •s more than rupees twenty-flve lakhs and whsch are opened to traffic Q" or after the 1 day of Ap"!, 197S, temporary bridges and tunnels on National Highways and temporan/ bridgss, etc in exercise of such powers. He further pointed out that under Section 9 of the Act 1956, the Centra! GQvernment has been vested with the power to make RuSes by Notification in the OfRcia! Gazette and under SectioR 9 (2)(b) ofthe Act 1956 it is provded that such Ruies may provide for the rates at which fees for sen/ices rendered in relatson to the use of, inter a!ia, ferries, permanent bridges, temporan/ bridges and tunne'.s on any Nat'Qp.a! Highway may be ievied, and the manner in which such fess shal! be collected under Section 7 of the Act 1956. He further submitted that !P, exercise of its power under SsctiQns 7 and 9 of the Act 1956, the Centra! Government made ths RuSes by the Notification datsd 19/02/1992. He further submitted that sub - Ru!e (ii) of Ru!e 1 of the Ru!es provided that the rulss sha!! come into force QR th.e date of the'r pubijcation in the OfHcia! Gazette and therefore, the Rules came i'nto force w.e.f. 19/02/1992 i.e. the date of pub'icatjon in th.e Qffidal Gazette. He submitted that since the aforesaid Ru!es were airsady in force, the petitioner was not on!y entjfed but 3!so obiiged to co!!ect the fees at the rates specifisd in the Tab'.s in the Schedu!e annexed to the Ruies and not at the rates specified in the ScheduSe annexed to the tease agreement, even though the rates specilled in the Tab!e in the -Schedule annexed to the Rules were higher than the rates specilled in the Scheduie annexed to the !ease agreement. He submitted that under the Jease agreement the petitioner was required to pay a tota! sum of Rs.46.00 iakhs to the State Government, which represented the bid amount, and the petitioner has already paid the said bid amount of Rs.46.00 !akhs. He submitted that sjnce by the interim order passsd by the Court on 07/05/1992 the petitioner was al!owed to collect the toJ! tax at the rates fsxed by the Centra! Govemment in the Tab!e in the Schedu!e annexed to the Ruies, th.e petitioner has, in fact, collected the fess from the different yehic!es crQssing the bridge for the whole one year at the said rates fixed in the TabSe in the Schedule annexed to the Rules and the Court wsl! have to fina!!y decide whether the petitioner was entit'ed to coliect ths tol! at the said rates. 4. Mr. V.V.S. Murthy, iearned Dy. Advocate General, appearing for the State of Chhattisgarh/rsspondents, on the other hand, re!ying on the averments in the rep!y filed on behalf of the respondents submitted that the notice 'nviting bids was issued on 14/02/1992 before the Rules were notified by the Centra! Government by the Notification dated 19/02/1992 and for this reason in the Schedule to the !ease agreement executed between the petitioner and the Executive Engineer, the rates of the fees specifsed in the Tabie in the Schedu!e annexed to the said Ru!es notified by the C-entra! Qovernment on 19/02/1992 were not mentiQned and instead the rates as f'xed by the State Government under the Act 1851 were ment'oned. He vehemently argued that since the Ruies made by the C-entra! QQvernment on 19/02/1992 were not in force at the tlme when the notice 'nviting bids \^s issued on 14/02/1992, the petitioner was entitied to cotlect only the rates as fixed by the State Govemment and as specified in the Schedule to the !ease agreement. 5. We are unabte to accept the said submission of Mr. Murthy. The pQsition in !aw is that an agreement cannot over-ride the !aw. Section 57 of +he !nd'an. C-ontract Act, 1872 provides that where persons reciprocally promise, first!y to do certain thlngs which are lega!, and second!y, under specified circumstances, to do certain other things, wh.ich are iliega!, the first set of promises is a contract, but the second is a void agreement. -Sect'on 58 of the indian Contract Act, 1872 prov'des that in the case of an a!ternat!ve promise, one branch of which is iega! and the other i!!egaS, the Sega! branch a!one can be enforced. Sub-ru!e (ii) of RuSe 1 of the Ru!es made by the Centra! Government under the NQtillcation dated 19/02/1992 states that the Ru'es wili come into force on the date of the pubHcation •" the Officia! Gazette and since the date of pub'icatiQn in the Officia! Gazette is admittedly 19/02/1992, the said Ruies came into force w.e.f. 19/02/1992. By 19/02/1992 even though the notics inviting b'ds had been issued by the Qffice of the Executive Engineer, the agreement between the petitioner and Executive Engjneer had not been executed and the said agresment was executed on!y on QS/04/1992, after the said Ruies came into force. !f that be so, onJy the portions of the agreement which are not h.it by the Rulss notified on 19/02/1992 wou'd be savsd and those portions of the agrQement which are hit by the aforssajd Ru'es noti^ed by the Centra! Goyernmsnt on 19/02/1992 wouid bs void. S. Rule 2(a) of the Rules defines "executing agency" and is quoted herein be'ow:- "2. Definit'ons: !n thess ru'es, unless the context oiherwise requires; (a) "execut'na aaency" means:- (O (H) m the case of those NatiQna! Highways adminisiraiiveiy piaced under the charge of ihe Border Roads Organisation, the Border Roads Development Board; in the case of those Nationa! Highways admjnisirativeiy pSaced under the charge of Nationa! Highways Authority, the Nationai Highvvay Authority; •n other cases the State Government / Union Temtory Administration fo which such functions are delegated under Section 5 of the Act. !t wfi{ be c!ear from the aforesasd definition of "executjng agency" that Jn She case of those Nationa! Highways administratively piaced under fhe chargs ofthe Border Roads OrganizatiQn, the Border Roads Development Board is ths executing agency; in the case of those Nationa! Highways administratively placed under the charge of Nationa! Highway AuthQrify, NatiQRa! Highway Authority is the executing agency and sn other cases State GovernmenyUnion Territory Administration to which such functions are delegated under -Ssction 5 of the Act, 1956 is the executing agency. Thus, in this case in respect of Nationa! Highway No. 6 iocated within the then -State of Madhya Pradesh (now State of Chhattisgarh) the State Government was the executmg agency in the year 1992. Sub-rute (10) of Rufs 7 of the said Ru.'es furthsr provides:- "!n case the fee co!!ect!on is through a contractor (on the basis of competitjve bidding) the agreement du'y .. / executed sha!! provide for remittance by the contraetor of the propQrtionate amount payable by the contractor for the period of contract at!east once every month to the executing agency / or his authorized representative." !t ws!J be clear from the p!am reading of the aforesajd prQyisions in Ru!e ? (10) that the Ru!es mads by the C-entra! GovernmenS by the Notification dated 19/02/1992 provided for an agreement between a contractor and the Executing Agency for cQiiection of fees by ths contractor and remittance by the contractor to the Executi.ng Agency. Th.us, the !ease agreement between the petitioner and the Executive Engineer for cQ!!ection of to!Js and remsttance on the basis of the competitive bidding is saved by the Sub-ru!e (10) of Ru!e ? of the Ru!es. Further, since the petitioner had agreed under the competitiye bidding to pay ths amount of Rs.46.00 iakhs out of ths coliection from the bridge, the petitioner wi!! not be required to pay any amQunt more than Rs.46.00 !akhs. It wil! aiso be clear from Ru!e 3 and Rufe 6 (1) of the Ruies that the fees at the rates specifsed m the Tab!e to the Scheduie were requirsd to be levied and CQ!Iected from the vehicies crossing the bridge. Hence under the !aw, fees that were to be Jevied and collected from the vehic'es crossing the bridge were not at the rates specified in the Schedu!e annexed to the lease agreement as fixed by the State Qovernment, but at the rates as specified in the Table in the -Schedule annexed to the Rules made by the Centra! Government by the Notification dated 19/02/1992. Accordingly, the provisions in the lease agreement for collection of tolls at the rates as specified 'n the Schedule annexed to the lease agreement were void and not enfQrceab'9. On the other hand. the petitsoner was entitied and liable „ „_ to coilect the fees at the rates as specified in the Table to ths Schedule annexed to the Ru'es notified by the Centra! Qovernmsnt on 19/02/1992. 7. With the aforesaid declaration, this wr't petition is disposed of. in cass the petit'onsr has paid the fu!! amount of Rs.4S.QO !akhs as per his bid and as per the lease agreement executed befrween him and ths Executive Engineer and there is no other valid reason for withholding the security amount furnished by the petitioner under the agreement, the security amount wil! be refunded to the petitioner by the authorities. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge Subbu