Limited judicial review in contractual matters, and the requirement for the decision-making authority to consider all relevant material before passing an order.

JUDGMENT

S.V. Gangapurwala, J. - The petitioner is issued with the work order on 08.03.2017 and appointed as contractor for collection of toll at three toll location viz. (i) Toll station near village Lasur on Aurangabad-Lasur Road, State Highway No. 30 (ii) at kilometer 336/800 near Nakshatrawadi on Aurangabad-Paithan Road and (iii) at Sawangi Toll station on Aurangabad-Jalgaon Road at Km 238/700 Maharashtra State Highway No. 8. The offer of petitioner of Rs. 40,14,00,000/- for toll collection at the subjected toll stations for a period of 156 weeks was accepted. The petitioner was required to pay the respondent-Corporation performance security amounting Rs. 4,01,40,000/-. The petitioner submitted bank guarantees of Rs. 1,90,60,000/- and Rs. 2,10,80,000/- totaling to Rs. 4,01,40,000/- valid for 156 weeks.

2. It is case of the petitioner that, since the National Highway Authority had changed the scope of work of Aurangabad-Jalgaon Road, the contractor who had carried excavation on major part of the pre-existing road had left the work midway, thereby reducing the traffic intensity on Aurangabad-Jalgaon Road to 40%, so also by reasons of non-maintenance of 25 km of Lasur Vaijapur Road wherein big pot holes were created during the rainy season, the traffic intensity reduced to 60% by reasons of the travelers using alternate road. The learned counsel for the petitioner submits that, the MSRDC failed to perform its fundamental obligation to maintain the three roads in motorable condition on which the three toll stations of IRDP Aurangabad were located. The traffic intensity on the Sawangi toll plaza situated at Aurangabad-Jalgaon Road and Lasur toll plaza at Aurangabad-Lasur road had reduced to 30% of its original collection. As per the assurance given to the petitioner a video graphic transaction survey was carried out by respondent-Corporation through M/s. UTES Consultancy Pvt. Ltd. for a period from 29.01.2020 to 04.02.2020 (7 days). The survey report reflected that, the average toll collection at three toll booths of IRDP at Aurangabad was Rs. 1,70,167/- per day i.e. Rs. 47,64,676/- per month. According to Mr. Gawali, the learned counsel, on 26.03.2020 nationwide lock down was declared on account of Covid 19 pandemic and the toll booth was closed from 26.03.2019 to 19.04.2020. Again on 28.10.2020, M/s. UTES Consultancy Pvt. Ltd. was appointed to carry out video graphic traffic intensity survey for 15 days at three toll stations of IRDP Aurangabad by MSRDC for a period from 06.11.2020 to 20.11.2020. M/s. UTES Consultancy Pvt. Ltd. in its report submitted that, the average daily collection at three toll stations was Rs. 1,04,542/- i.e. Rs. 29,27,176/- per month. However, the petitioner was required to pay the toll collection at the initial rate.

3. The petitioner persuaded the Vice Chairman and Managing Director to give him hearing as per Clause 39. The Vice Chairman and Managing Director under order dated 07.07.2021 directed the petitioner to pay a reduced installment at the rate of Rs. 65,80,710/- per month with effect from 31.10.2019.

4. The learned counsel for the petitioner submits that, the said order dated 07.07.2021 does not reflect the effect of complete and partial lockdown at the behest of Central and State Government. The Chief General Manager (TAD), MSRDC based upon the order of the Vice Chairman and Managing Director, directed the petitioner to pay an arrears of Rs. 8,05,36,957/-. The petitioner without getting basis of calculation of the monthly installment of Rs. 65,80,710/- calculated by the Vice Chairman and Managing Director paid the amount demanded under financial duress. The Chief General Manager (TAD) invoked the bank guarantee of Rs. 1,90,60,000/- furnished by the petitioner. The petitioner by detailed letter gave reference to the traffic intensity survey carried out by MSRDC. According to the learned counsel, as per the report of M/s. UTES Consultancy Pvt. Ltd. appointed by the respondent-Corporation the respo