Contonment Board, Meerut & Anr vs K.P. Singh & Ors

3. Under Section 60 of the Cantonment Act, the Cantonment Board was empowered to impose toll tax. Accordingly, on 08.01.2005, a Gazette Notification was issued for the imposition of the toll tax on such commercial motor vehicles passing through the Meerut Cantonment.

4. In pursuance of this, a tender was floated and bids were invited relating to 2005-2006 for levying toll tax upon the entry of the commercial motor vehicles within the territorial limits of Meerut Cantonment in the sense that the bidders were expected to pay the agreed amount to the Cantonment Board and the successful bidder was entitled to levy and collect toll tax upon the entry of the commercial motor vehicles in the territorial limits of Meerut. Twenty persons submitted their tenders in response to the notice inviting tenders whereupon the tender submitted by respondent Nos.1 and 2 herein jointly came to be accepted. The highest offer by respondent Nos. 1 and 2 for the collection between 01.10.2005 to 04.10.2006 was for 3,57,30,000/-. This was challenged by one Gajraj 3 Singh. Earlier, validity of the imposition of tax on the commercial vehicles by the Cantonment Board was challenged by the Civil Writ Petition Tax No.1601 of 2005. That Writ Petition was allowed and the High Court quashed the Notification dated 08.01.2005. The Cantonment Board filed a Special Leave Petition against the impugned order of the Allahabad High Court dated 23.03.2006 and leave was granted resulting in the main Notification authorizing the appellant to collect toll tax remaining intact.

5. The appellant, therefore, issued a fresh Notification inviting tenders, on 14.09.2006. By this, the contract for collection of tolls for the period of one year w.e.f 05.10.2006 to 04.10.2007 was advertised. Again, respondent Nos.1 and 2 herein stood as the highest bidders in the auction dated 27.09.2006 and offered the highest bid of Rs.3,61,57,727/- (Rs.1,02,000/- per day) for the said period of one year. This was approved by the appellant vide its resolution No.229 dated 29.09.2006. After the finalization of the tender, respondent No.5 Umesh Kumar submitted an application offering to pay 1,05,000/- per day with the advance deposit of 5 days at the said rate in the account of the Cantonment Board. A Writ Petition was filed by respondent No.5 being Writ Petition No.60135 of 2006 claiming therein a Writ of Mandamus commanding the appellant herein to start the process of holding fresh auction or tenders for letting out the rights to collect toll tax from the commercial motor vehicles passing 4 through the territorial limits of Meerut Cantonment by issuing advertisement within the stipulated time. It was further prayed that till the finalization of fresh auction, respondent No.5 should be allowed to pay at the rate of 1,25,000/- per day for the collection of toll tax.

6. Ordinarily, this Writ Petition should never have been entertained. However, it was actually entertained and the High Court at the time of passing the orders on the application for stay found that though respondent No.5 was willing to pay Rs.1,25,000/- per day for the right to collect toll tax, yet respondent Nos.1 and 2 herein had suo motu made an offer to pay Rs.1,31,000/- per day for the right to collect toll tax. The High Court as an interim order directed respondent Nos.1 and 2 to deposit Rs.1,31,000/- per day to levy and collect the toll tax during the interregnum. Some other orders were also passed with certain directions. This order was passed on 08.11.2006.

8. It so happened thereafter that the said auction not having been approved by the senior officers, a fresh auction was ordered for letting out the rights to collect the toll. In that view, the Writ Petition was not pressed by respondent No.5, and as a result, the petition was dismissed as not pressed. However, the High Court did not stop at that and noted that the original bid by respondent Nos.1 and 2 was only for Rs.1,02,000/- w.e.f. 09.11.2006 for which they had been given the right of collection of toll tax. The High Court, therefore, took the view that since the petition was dismissed, the interim order, if any, more particularly dated 08.11.2006 would merge with the final order and if the petition was dismissed, it would mean as if the petition had not been filed and if any of the parties had gained something under the interim order that effect of the interim order should be neutralized. Since the petition had been dismissed as not pressed, the interim order dated 08.11.2006 accepting the bid of the respondent Nos. 5 and 6 of Rs.1,31,000/- would merge with the final order and respondent No.1 and 2 would be entitled to get refund of the excess amount of Rs. 29,000/- per day since their final offer which was accepted by the Cantonment Board was only of Rs.1,02,000/-. The Court took the view that in view of the maxim actus curiae neminem gravabit, no party could be allowed to take benefit of its own wrongs by getting the interim orders and thereafter blaming the Court. In that view, the High Court directed refund in favour of respondent Nos. 1 and 2 of the excess amount 6 i.e. Rs. 29,000/- per day w.e.f. 09.11.2006 till the end of the contract period. It is this order which has fallen for our consideration at the instance of the Cantonment Board.

10. As against this, Dr. Dhawan, learned Senior Counsel supported the order, contending that but for the order, the petitioners would have been required to pay at the rate of Rs. 1,02,000/- per day and ultimately the Writ Petition in which the said order was passed as the interim arrangement thereby was dismissed. The respondent Nos.1 and 2 would have a right to refund of the amount paid by them in excess of their original offer because that would be the natural result of the dismissal of the Writ Petition.

15. We have already explained the observations of this Court in paragraph 10 in the light of the facts of this case and it is clear that the appellants cannot take advantage and claim refund because of the fact that this was their voluntary offer and they were not directed to pay the amount that they did. In view of this, we find that the High Court's order is quite unsustainable. We therefore, set aside that order and hold that the Cantonment Board would not be liable to refund anything in favour of respondent Nos.1 and 2 who have enjoyed the rights of collection of toll on the basis of their own voluntary offer made before the High Court which the High Court has merely accepted by its order dated 08.11.2006. With this 13 observation, the appeal is allowed. It shall not now be necessary for the respondent to consider the representation made by respondent Nos.1 and

2. The direction to that effect by the High Court is also set aside. Costs are estimated at Rs.50,000/-.

February 1, 2010.

Judgment delivered by : Hon'ble Mr. Justice V.S. Sirpurkar Nature of Judgment : Reportable