UPADHYAYA AND COMPANY Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Sri N.P. Pandey, learned counsel for the petitioner and learned Chief Standing Counsel for the respondents. Short question that arises for determination in this case is as to what is the amount which the petitioner is liable to pay for collecting tolls after expiration of the term of lease on Shastri Bridge over river Ganga at Allahabad. Factual backdrop necessary to appreciate the question raised may be stated thus: The petitioner had a theka for collection of tolls on the bridge in question up to 31.5.1987. Shortly before expiry of the said period, the Commissioner of Allahabad Division - -respondent No. 3 on 28.5.1987 passed an order (Annexure -1 to the writ petition) extending the period of petitioner's theka till fresh settlement for the period was made. It was specified in the order that the petitioner would pay the premium at the enhanced rate of 7.5% over and above the amount paid by it for the preceding year. Thereafter a public auction was held for settlement of theka on the bridge in question, but the same could not be finalised due to pendency of some litigation in this Court. This Court by order dated 8.1.1988 passed in writ petition No. 9803 of 1987 directed, as an interim arrangement, that the petitioner "would continue to realise the fee on the basis of royalty calculated at the rate of Rs. 95 lacs annually" and that "the interim arrangement would continue till 27.1.1988" Even after expiry of the period i.e. 27.1.1988, the petitioner continued to collect tolls in pursuance of further interim order passed by this Court on 25.1.1988 (Annexure -6 to the writ petition), in which it was stated, inter alia, that the petitioner will pay royalty at the rate of Rs. 93,61,000/ - annually. The said arrangement was continued by successive interim orders passed on 8.2.1988 (Annexure -7), 10.3.1988 (Annexure -8). Finally the petitioner handed over the charge of collection of tolls on the bridge in question on 10.8.1988.

(2.) FROM the facts disclosed above, it is clear that notwithstanding the expiry of the period of its contract, the petitioner continued to collect tolls on the bridge in question initially by virtue and in terms of extension order granted by the Commissioner and later on under the interim orders passed by this Court. These orders clearly specify the enhanced rate at which the petitioner was required to pay the premium, therefore, it is liable to pay premium at the rate specified in the extension orders passed from time to time. We are of the considered view that it is not open to the petitioner to submit that notwithstanding the order of this Court fixing royalty firstly at the rate of Rs. 95 lacs and later on at the rate of Rs. 93,61,000/ - annually, it has to pay at the rate lesser than that on the ground that the highest offer made in the auction for subsequent period has gone down. At the cost of repetition we may state here that the petitioner was operating wholly in pursuance of the orders passed by this Court from time to time and was duty bound to comply with the conditions specified in the said orders. It was open to the petitioner to have declined to collect tolls on the terms and conditions imposed by the Court. The petitioner having taken advantage of the interim orders, cannot be permitted to wriggle out of the conditions subject to which it was permitted to collect tolls after expiration of the term of theka granted in its favour. The following principle succinctly stated in Broom's Legal Maxims, 10th edition at page 196 squarely applies to the facts of the present case: