K S R T C Vs. ANIL KUMAR

JUDGEMENT

(1.) Since the issue raised in both the O.Ps. is the same, O.Ps. are clubbed, heard together and are disposed of by this common judgment.

(2.) Parties, documents and facts referred to in this judgment are from O.P. No.11166 of 1998 filed by the Kerala State Road Transport Corporation Ltd. challenging the order of the Government granting additional toll amount to the first respondent, over and above what was granted by the Government earlier vide Ext.P1. The connected O.P., O.P. No.5093 of 1998 is filed by the first respondent in O.P. No.11166 of 1998, for direction to the KSRTC to make payment of the balance amount in terms of Ext.P4 order. I heard counsel appearing for the petitioner, first respondent and Government Pleader and I have gone through the records produced including Exts.P1 and P4.

(3.) The first respondent was given contract for collection of toll charges for use of vehicles through Mamom Bridge on the National Highway NH 47 for the period from 12.4.1993 to 31.3.1994. Even after opening of new bridge, KSRTC was using the old bridge to avoid payment of toll charges. The first respondent appeared to have caused damage and obstruction to the approach road of old bridge obviously to divert all the vehicles including KSRTC's to pass through the new bridge to collect toll charges. Crime No.147 of 1994 was registered by the Sub Inspector of Police, Attingal against the first respondent for the damage done to the old road and old bridge. It is not known what is the fate of the said criminal case. Even though the issue has a direct bearing, there is no necessity to go into the details of the said crime for the disposal of these cases. There is nothing on record to prove the date on which KSRTC started operating their vehicles over the new bridge attracting toll charges. However, this Court vide judgment produced as Ext.R1(c) dated 4.7.1994 directed the Superintending Engineer, National Highways to prohibit use of old bridge by KSRTC and to close down the old bridge for use by heavy vehicles. It is not known as to when this order was implemented and KSRTC vehicles were compelled to use the new bridge. It is found by Government in Ext.Pl order that old bridge was in fact closed on 22.9.1994 implying that KSRTC started operation of their vehicles only from 23.9.1994 onwards. However, first respondent still allowed the KSRTC to ply vehicles through the new bridge without collecting toll charges. The first respondent's representation dated 13.10.1995 claiming toll charges from the KSRTC was considered by the Government pursuant to judgment of this Court in O.P. Nos.13845 and 15810 of 1994 and the same was disposed of vide Ext.P1 order dated 30.7.1996. The first respondent's claim that KSRTC was plying vehicles from the beginning of contract was found against the first respondent in Ext.Pl and the clear-cut finding with regard to date of commencement of operation by KSRTC by the Government is 23.9.1994. The next issue considered was the number of vehicle operated over the new bridge to compute the toll liability. Even though first respondent claimed that 385 vehicles per day were operated either way, there was no document to prove it and the data produced was found to be intrinsically unreliable. However, on the basis of toll charges paid by the KSRTC for preceding years, and based on the increase in number of operations, the Government came to a rational finding that 260 vehicles would have been operated by KSRTC attracting liability for those trips. Accordingly Government fixed liability on the KSRTC for use of 260 vehicles per day for a period of 190 days covering from 23.9.1994 to 31.3.1995. Since up and down operations were taken for grant of toll charges, the benefit of one and a half times of one way rate available to other vehicle operators was granted. The total liability was fixed by Govt. vide Ext.P1 at Rs.11,11,500/-. After reckoning the payment of Rs. 4,70,000/- already made by the KSRTC, the KSRTC was ordered to pay balance amount of Rs. 6,41,500/-. When KSRTC failed to pay this amount, first respondent filed O.P. No.13726 of 1996 in this Court and after recording the submission of standing counsel for KSRTC that payment would be made within three months from 27.9.1996, the said O.P. was closed. The first respondent got the full payment pursuant to Ext.Pl order.