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IN THE HIGH COURT OF RAJASTHAN
Pushpendra Singh Bhati, J.
Mahendra Singh Chouhan - Appellant
Versus
State Of Rajasthan And Others - Respondent
Civil Writ Petition No. 2854 of 2019 Connected With Civil Writ Petition Nos. 8801, 12131, 12131 of 2018, 4743 of 2019
Decided On : 10-05-2019
TOLL COLLECTION - EXEMPTION - PRIVATE VEHICLES - CONTRACT - MODIFICATION - FRAUD - JURISDICTION - WRIT - EQUITABLE RELIEF - CLEAN HANDS DOCTRINE - PUBLIC INTEREST - PUBLIC EXCHEQUER - LOSS - PUBLIC POLICY - PUBLIC AT LARGE - PUBLIC LAW REMEDY - CONTRACTUAL DISPUTE - ARBITRATION - NATURAL JUSTICE - AUDI ALTERAM PARTEM - BANK GUARANTEE - IRREVOCABLE OBLIGATION - INJUNCTION - IRRETRIEVABLE HARM - INJUSTICE - FRAUD - EGREGIOUS NATURE - UNCONDITIONAL BANK GUARANTEE - LETTER OF CREDIT - INDEPENDENT CONTRACT - SEPARATE CONTRACT - ABSOLUTE IN NATURE - DISPUTE BETWEEN PARTIES - ENFORCEMENT - BANKING CHAIN - INTERNATIONAL COMMERCE - TRUST - IRREPARABLE DAMAGE - COMMERCIAL DEALINGS - UNCONDITIONAL BANK GUARANTEE - LETTER OF CREDIT - BENEFICIARY - REALIZATION - IRRESPECTIVE OF DISPUTES - BANK - DUTY TO HONOUR - IRRESPECTIVE OF CUSTOMER DISPUTE - COURTS - SLOW IN GRANTING INJUNCTION - RESTRAIN ENFORCEMENT - BANK GUARANTEE - LETTER OF CREDIT - FRAUD - VITITIATE FOUNDATION - BENEFICIARY ADVANTAGE - IRRETRIEVABLE HARM - INJUSTICE - ONE PARTY - UNJUSTIFIED ENRICHMENT - ESCALATED COST - VIDEO - FRAUD UPON SYSTEM - SUPPRESSION OF MATERIAL FACTS - TWISTED FACTS - MISLEADING COURT - DISMISSAL AT THRESHOLD - MERITS OF CLAIM - CONDUCT - REPREHENSIBLE - POLLUTING COURSE OF JUSTICE - DIRTY HANDS - DISCRETIONARY JURISDICTION - HUMAN RIGHT - ACCESS TO JUSTICE - JUDICIAL REVIEW - BASIC FEATURE OF CONSTITUTION - EQUITABLE RELIEF - FALSE ALLEGATIONS - UNLAWFUL - ATTEMPT TO CHEAT SYSTEM - PROTECTION FROM COURT - JUSTIFIED - TRAFFIC CENSUS - SURVEY - DETAILS - CONFIDENCE - THOROUGH APPLICATION OF MIND - EXEMPTION REBATE - FRAUDULENT DETAILS - NO JUSTIFICATION - NO REBUTTAL - INTERFERENCE NOT CALLED FOR - WRIT PETITIONS DISMISSED - STAY APPLICATIONS DISMISSED.
Fact of the Case:
Petitioner, a toll collection contractor, challenged the order of the respondent exempting private vehicles from toll collection. The petitioner claimed that the exemption was arbitrary and caused loss to the public exchequer. The respondent contended that the exemption was in the public interest and that the petitioner had not provided accurate toll collection data.
Finding of the Court:
The court found that the petitioner had provided fraudulent data regarding toll collection and that the respondent had conducted a proper traffic census before arriving at the exemption amount. The court also found that the petitioner had not come with clean hands and was not entitled to equitable relief. The court dismissed the writ petitions and the stay applications.
Issues: 1. Whether the exemption of private vehicles from toll collection was arbitrary and caused loss to the public exchequer? 2. Whether the respondent had conducted a proper traffic census before arriving at the exemption amount? 3. Whether the petitioner had provided fraudulent data regarding toll collection? 4. Whether the petitioner had come with clean hands and was entitled to equitable relief?
Ratio Decidendi: 1. The court held that the exemption of private vehicles from toll collection was not arbitrary and was in the public interest. 2. The court held that the respondent had conducted a proper traffic census before arriving at the exemption amount. 3. The court held that the petitioner had provided fraudulent data regarding toll collection. 4. The court held that the petitioner had not come with clean hands and was not entitled to equitable relief.
Final Decision: The court dismissed the writ petitions and the stay applications.
JUDGMENT
1. These writ petitions under Articles 226 & 227 of the Constitution of India have been preferred claiming, in sum and substance, the following reliefs:
"It is, therefore most humbly and respectfully prayed that record of the may kindly be called for and after examining the same this Honble Court by an appropriate writ, order or direction direct quash and set aside the order dated 10.12.2018 (Ann.18). It is further prayed that a declaration may kindly be made that if the state takes any position in the mid of contract then the new conditions can only be imposed with mutual understanding. A declaration may kindly be made that the earlier contract is having no effect ongoing contract.
Any other order or direction which this Honble Court thinks fit in the interest of justice may kindly be passed in favour of the petitioner."
2. Brief facts of this case, as noticed by this Court, are that the respondent invited tenders for toll collection for a period of 24 months on Dabok-Mawli-Kapasan-Chittorgarh Road (State Highway-9) at Km.2/800 and Km.79/500. The petitioner came out to be the highest bidder having given the rate of Rs. 3711.00 lakhs.
3. The agreement between the petitioner and the respondent has been executed, and thereafter, the work order has been issued to the petitioner on 12.12.2017. In pursuance of the said work order, the petitioner has executed a bank guarantee as a performance security and also gave 5% security money of the bidding price. The petitioner has also submitted a bank guarantee to the tune of Rs. 5,56,65,000/- and the security of the bidding amount was Rs. 1,85,55,000/-. The petitioner also submitted 24 postdated cheques for advance monthly installments for the contract period. Further, the petitioner was to pay the bid amount in 24 monthly advance installments and 5% of the performance security was to be realized in 24 installments.
4. The bidding amount, in the present case, was Rs. 37.11 crores and the monthly installment was Rs. 1,57,56,288/-, but the petitioner was to pay monthly installment of Rs. 1,49,83,163/- and rest of the amount of installment was being deducted from the 5% performance security amount, which was Rs,7,73,125/-. Thus, as per the pleaded case of the petitioner, an advance monthly installment, which is to be paid by the petitioner, was Rs. 1,49,83,163/- plus Rs. 7,73,125/-, which was to the tune of Rs. 1,57,56,288/-. The petitioner has paid the monthly installment from the date of work order, as full and final amount till 31.03.2018.
5. The Government of Rajasthan on 06.03.2018 announced that on all the State Highways, the private vehicles shall be exempted from toll, and in pursuance of such announcement, a letter dated 31.03.2018 was issued directing the petitioner not to levy and collect the toll from private vehicles i.e. four wheeler car etc.
6. The respondents thereafter, took a decision to carry out seven days traffic census alongwith 24 x 7 videography from 12.03.2018 to 19.03.2018 on all toll points jointly alongwith Project Director and the contractor. The said traffic census/survey was to ascertain as to how many exempted vehicles were crossing the toll booths, so that necessary deduction can be made in the concluded and accepted bid amount. The concluded bid amount in this case was Rs. 37.11 crores and the deduction was to be made in accordance with the aforementioned joint survey. The said modus operandi was finalized to compensate the revenue loss to the petitioner.
7. Learned counsel for the petitioner however, submitted that such joint survey was never conducted and is thus, seriously disputed.
8. Learned counsel for the petitioner further submitted that no proper mechanism was framed, which could satisfactorily compensate the petitioner for the loss caused due to the policy decision taken by the respondent for exempting the private vehicles from the toll with eff
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