EXECUTIVE ENGINEER Vs. RASA CONSTRUCTIONS

JUDGEMENT

(1.) The main question that arose before the learned single Judge and that arises before us is whether the appellant authorities are entitled to adjust a sum of money calculated at Rs.11,87,573.00 p.m. for the period from 1-4-1996 to 22-9-1996 (both days inclusive) out of the earnest money deposit made by the writ petitioner-respondent herein. This question arises in the following factual background: The petitioner was the successful bidder for the leasehold right for collecting the toll gate on the high level bridge over Maneru river on Hyderabad-Karimnagar road at 15/6 km. and the period of contract was from 1-7-1995 to 31-3-1996 @ Rs.7,83,222.00 per month. However, the toll station was handed over on 1-8-1995. The petitioner filed a suit - O.S. No.14 of 1996 and by virtue of a status quo order obtained therein he was permitted to continue to collect toll- gate from 1-4-1996 to 24-6-1996 and the Government had also extended the lease period beyond 31-3-1996 on an enhanced rental value of Rs.90 lakhs per year. Pursuant to the dismissal of the suit referred to above on 26-6-1996 the toll-gate was taken over by the appellants from 25-6-1996 and thereafter the appellants called for fresh tenders to run the toll-gate. The petitioner questioned the said notification in Writ Petition No.17953 of 1996 wherein he obtained interim order pursuant to which the toll-gate was handed over to the petitioner on 22-9-1996 on condition of the petitioner paying Rs.9 lakhs per month from 1-10-1996. However, the Government filed Writ Appeal No.1835 of 1996 and by an order dated 28-11-1996 a Division Bench of this court dismissed the interim application arid the writ petition. The toll-gate was then taken over by the appellant and it is being run departmentally. Thereafter the petitioner made a representation to the authorities to refund the deposit amount of Rs.9,64,000/- and also to discharge the bank guarantee which he had furnished at the time of taking over the toll-gate pursuant to the directions of this Court. Thereafter when a fresh tender notification was issued stipulating a condition that an earnest money deposit of Rs.10.50 lakhs had to be made for release of tender schedule, the petitioner requested the authorities to supply tender schedule after adjusting the amounts refundable to him. However, it appears that the authorities have refused to issue tender schedule to the petitioner without furnishing fresh earnest money deposit.

(2.) Under those circumstances the present writ petition was filed initially seeking Writ of Mandamus declaring the action of the appellant authorities in not discharging the bank guarantee for Rs.11,87,573.00 p.m. of Indian Bank, Karimnagar furnished by the petitioner and not refunding the deposit.of Rs.9,64,000/- and also for not adjusting the refundable amount towards earnest money deposit of Rs.10.50 lakhs for submitting the tender pursuant to the notification dated 12-12-1996 as illegal, arbitrary and unreasonable and for consequential directions. However, during the pendency of the writ petition the appellant authorities issued proceedings dated 16-11-1997 directing the writ petitioner to remit the differential amount after adjusting the above amounts. Under those circumstances the petitioner filed interlocutory application for amendment of the prayer in the writ petition seeking Writ of Mandamus declaring the action of the appellants in not discharging the bank guarantee and in not refunding the deposit of Rs.9,64,000.00 and also the order of the Executive Engineer dated 16-11-1997 in directing the petitioner to pay the differential amount as illegal and for consequential direction. The said interlocutory application was ordered by the learned single Judge.

(3.) The writ petition was opposed by the appellant authorities by contending that the relief sought for by the writ petitioners arises out of a contract and, therefore, the writ petition is not maintainable. It was also contended by the appellant authorities that the petitioner was permitted to run and operate toll-gate between 1-4-1996 and 22-9-1996 by virtue of several orders passed by the courts and ultimately the suit as well as the writ petition were dismissed and, therefore, he is liable to pay toll-gate at Rs.11,87,573.00 p.m. for the period from 1-4-1996 to 22-9-1996 on par with the bid offered by the highest bidder in the auction conducted on 20-1-1997.