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IN THE HIGH COURT OF RAJASTHAN
Pushpendra Singh Bhati, J.
Mahendra Singh Chouhan - Appellant
Versus
State Of Rajasthan Through Secretary Public Works Department Secretariat, Jaipur - Respondent
Civil Writ Petition No. 2854 of 2019, 8801 of 2018, 12131 of 2018, 4743 of 2019
Decided On : 10-05-2019
CONTRACT - TOLL COLLECTION - EXEMPTION OF PRIVATE VEHICLES - TRAFFIC CENSUS - FRAUDULENT DATA - CLEAN HANDS DOCTRINE - WRIT JURISDICTION - PUBLIC INTEREST: 1. A toll collection contractor is bound by the terms of the contract, including the provision that toll tax shall be levied according to the rates prescribed by the State Government and exemptions granted by the Government. 2. The Government's decision to exempt private vehicles from toll charges is a policy decision taken in the public interest, and the contractor cannot challenge it. 3. The contractor's failure to provide accurate and reliable data regarding toll collection, including providing fraudulent videography, amounts to a breach of contract and a fraud on the system. 4. The contractor's conduct in providing fraudulent data disentitles him from seeking equitable relief from the court, as he has not come to the court with clean hands. 5. The court will not interfere with the Government's decision to issue a fresh NIT for the remaining period of the contract, as it was compelled to do so due to the contractor's default and fraud.
Fact of the Case:
The petitioner, a toll collection contractor, challenged the Government's decision to exempt private vehicles from toll charges and the subsequent issuance of a fresh NIT for the remaining period of the contract. The petitioner claimed that the Government's decision was arbitrary and that the traffic census conducted to determine the exemption rebate was flawed. The petitioner also alleged that the Government failed to provide a proper mechanism to compensate him for the loss caused by the exemption.
Finding of the Court:
The court found that the Government's decision to exempt private vehicles from toll charges was a policy decision taken in the public interest and that the contractor was bound by the terms of the contract, which included the provision that toll tax shall be levied according to the rates prescribed by the State Government and exemptions granted by the Government. The court also found that the contractor had failed to provide accurate and reliable data regarding toll collection, including providing fraudulent videography, which amounted to a breach of contract and a fraud on the system. The court further found that the contractor had not come to the court with clean hands and was therefore not entitled to equitable relief.
Issues: 1. Whether the Government's decision to exempt private vehicles from toll charges was arbitrary and unreasonable. 2. Whether the traffic census conducted to determine the exemption rebate was flawed. 3. Whether the Government failed to provide a proper mechanism to compensate the contractor for the loss caused by the exemption. 4. Whether the contractor's conduct in providing fraudulent data disentitled him from seeking equitable relief from the court.
Ratio Decidendi: 1. The Government's decision to exempt private vehicles from toll charges was a policy decision taken in the public interest and was not subject to challenge by the contractor. 2. The traffic census conducted to determine the exemption rebate was conducted in a fair and reasonable manner, and the contractor's claim that it was flawed was not supported by evidence. 3. The Government did not fail to provide a proper mechanism to compensate the contractor for the loss caused by the exemption, as the contractor was entitled to claim exemption rebate for the exempted vehicles. 4. The contractor's conduct in providing fraudulent data amounted to a breach of contract and a fraud on the system, and disentitled him from seeking equitable relief from the court.
Final Decision: The court dismissed the writ petitions filed by the contractor, holding that the Government's decision to exempt private vehicles from toll charges was justified, that the traffic census conducted to determine the exemption rebate was fair and reasonable, that the Government did not fail to provide a proper mechanism to compensate the contractor for the loss caused by the exemption, and that the contractor's conduct in providing fraudulent data disentitled him from seeking equitable relief.
JUDGMENT
Pushpendra Singh Bhati, J. - 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 Hon'ble 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 Hon'ble 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 effect from 31.03.2018.
9. Learned counsel for the petitioner also claims that thereafter,
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