MAHENDAR TIWARI Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The writ petition is disposed of finally on merits after hearing the learned Counsel for the petitioner and the learned Government Pleader for Roads and Buildings for respondents.

(2.) The petitioner seeks a direction declaring the inaction of the respondents, in particular respondent No.2 in not providing Toll Collection Booth and gate with electricity supply at K.M. 1/4 of Anakapalli By-pass at National Highway (for short 'NH') No.5 and adequate protection for collection of the toll fee there. A further direction is sought that the respondents should not insist upon the payment of any quantum of lease amount from 9-8-1998 onwards till respondents construct the said toll gate and comply the other conditions referred above.

(3.) A Notification No.6957/EE.III/ TA.VI/AEE-12/97 dated 25-4-1998 was published by respondent No.2 for calling sealed Tenders for collection of toll amounts. Tims it was a public auction of right to collect the toll. The petitioner was one of the bidders and his Tender for an amount of Rs.7,61.61,000.00(Rs. Seven crores sixty one lakhs and sixty one thousands only) was accepted. The petitioner contends that the toll fee for a period of one year starting from 1-4-1998 to 31-3-99 was to be collected at two points. One was at Toll Gate at KM 371/2 of Vijayawada-Visakhapatnam Section on NH 5 and the other one was at KM 1/4 of Anakapalli By-pass on NH 5. The period for which this right of toll collection was to be exercised was from 21-7-1998 to 31-3-1999. This was because the auction took place after 1-4-1998. A contract was executed accordingly on 20th of July, 1998. The proportionate bid amount of the petitioner was fixed as Rs,5,30,26,073/-(Rs.five crores, thirty lakhs, twenty six thousand seventy three only). This was to be paid in monthly instalments of Rs. 63,46,750.00(Rs.Sixty three lakhs forty six thousand seven hundered and fifty only. However, the first instalment was of Rs.22,52,073.00 (Rs.twenty two lakhs fifty two thousand seventy three only). The contention of petitioner is that under Clause 25 of the lease deed, the respondents were duty bound to construct toll houses, sheds and gates and hand them over to the petitioner for facilitating the collection of the toll tax at the two gates. The Department however provided only one such constructed booth of Toll Gate at KM 371/2 of Vijayawada-Visakhapatnam Section and no booth was constructed or gates were set up at KM 1/4 of Anakapalli By-pass. The petitioner contends that he was assured by the Executive Engineer of the respondent-department that a permanent toll booth, shed and gate would be constructed at KM 1/4 of Anakapalli By-pass within a few days. On that assurance the petitioner took the possession for operating the lease. Inspite of such assurance, till filing of the writ petition, no toll booth was constructed at KM 1/4 of Anakapalli By-pass. This in-action of the respondents has prevented the petitioner from effective toll collection. It is alleged that 75% of the traffic passes through the point at KM 1/4 of Anakapalli By-pass and only 25% at the other toll gate. It is alleged that unsuccessful bidders with the help of local politicians are in some way or the other obstructing the petitioner's right to collect the toll tax. The petitioner is from State of Rajasthan and his success in bidding has caused heart-burn to the local bidders. The local persons do not allow petitioner to collect the toll tax at Anakaplli By-pass. His material is either being damaged or stolen away. He was not given police help or protection. It was only after he filed a writ petition in the High Court for direction to the Superintendent of Police to provide adequate protection, mat some protection was given. Be that as it may, the grievance of the petitioner as against the respondents is that they are now bent upon taking action against petitioner for not collecting toll tax at Anakapalli Bypass and are insisting for payment of the amount due from the petitioner though the respondents are at fault in not providing the facilities as per the agreement. The petitioner contends that the respondents do not wish to discharge their mandatory obligation of fulfilling the conditions in the lease and this is violative of the petitioner's right. On making out such a case the petitioner-has approached this Court.