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Beni Madhav Pandey v. State Of U.P. And Others - WRIT - C No. 56042 of 2006 [2006] RD-AH 21447 (20 December 2006)


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C.J.'s Court.

Civil Misc. Writ Petition No. 56042 of  2006.

Sri Beni Madhav Pandey ...........   Petitioner


State of U.P. & others ............   Respondents.


Counsel for the Petitioner : Mr. Shashi Nandan, Senior Advocate, assisted by Mr. R.C. Singh.

Counsel for the respondents : Mr. Ravi Kant, Senior Advocate, assisted by Mr. Punit Kumar Gupta & Standing Counsel.

Hon'ble Ajoy Nath Ray, CJ.

Hon'ble Ashok Bhushan, J.

This is a writ petition for cancellation of certain auctions of toll tax rights for three years, the term of which is to commence from April, 2007. The auctions were held around the middle of this year, i.e., one year before the required time, which is a period extraordinarily and unusually large in toll tax matters.

The principal submission of the writ petitioner was that the advertisement was not proper and the papers chosen did not have the widest circulation. The Government order, which controls these matters (dated 29.7.1992) states that the publication is to be made in papers having "Sarvadhik Prachar", i.e., the widest circulation.

The papers chosen were The Pioneer in English, Awaj-E-Mulk in Urdu and Nispaksha Samachar Jyoti in Hindi. In U.P. the Hindi publication is of very great importance. Although affidavits were filed today on the part of the respondent to show that the Urdu and the Hindi newspapers have sufficient circulation, yet there can be no two opinions that in regard to the Hindi paper, the circulation can come nowhere near being comparable with those of Dainik Jagran or Amar Ujala or Aaj.

This, in our opinion, is quite sufficient for direction of a fresh auction because the necessity of wide circulation is to invite free and fair competition and not to allow any party to have any collusive contract in its favour. The respondent is also the sitting toll tax collector on the bridge now.

In the case of a hoarding auction, which went up to the Supreme Court [see (2003)10 S.C.C. 258; Business Link vs. A.S. Advertising Companying and others] an Allahabad High Court decision was reversed and the Court opined that circulation of about 30 thousand was enough in the facts and circumstances of the case. There are two distinguishing features. The first is that the toll tax order requiring the widest circulation was not there in the hoarding case and there is no similar Government order regarding hoarding. Secondly two and half years had passed in that case but in our case the matter is about four months in advance.

Toll tax rights are heavy finance matters. The respondent has stated on affidavit that he has deposited already Rs.52,20,950.00, about half of which is for stamps and the balance half is quarter of the annual sum to be paid to the Government as price of the rights of collection. This makes the annual collection right worth more than rupees one crore.

The deposit was made partly in cash as was submitted by learned counsel. The deposit is usually made by draft or fixed deposit receipt, as was submitted by Mr. Shashi Nandan.

In any event the writ petitioner is quite prepared to deposit the same amount, i.e., Rs. 52 lac and add for the purpose of obtaining the rights of participation in a fresh auction. This shows that the petition is not frivolous. Just as blood is thicker than water money is heavier than words.

Mr. Ravi Kant appearing for the respondents on the other hand submitted on instructions that his client does not want to withdraw the sum already deposited and therefore, if the Court should so decide, we should direct deposit by Mr. Shashi Nandan's client, in case we overrule Mr. Ravi Kant's submissions and direct fresh auctions. However, he submitted that the petition should be dismissed. He said that one of the pre requisites of a tenderer in this case is three years experience in operating a computerised toll tax bridge. In the counter affidavit it is alleged that the petitioner has no such experience. It is only generally denied by the petitioner. In our opinion that is a sufficient denial in the facts of this case. The ultimate decision thereof would be made by the authorities who would have to award the contract on the basis of the tender conditions and not in breach thereof.

An additional point also is to be noted that the respondent's deposit was made even before the approval by the Divisional Commissioner and this is neither the rule nor the proper practice.

On behalf of the State it was submitted that the vernacular papers are not those having the widest circulation.

In these circumstances all fairness and justice requires that the toll tax rights be auctioned afresh in the interest of fetching of the maximum revenue. If Mr. Shashi Nandan's client deposits within three weeks from the date hereof a sum of Rs.52,20,950.00 with the concerned Executive Engineer, P.W.D. with whom the respondent's deposits were already made, then and in that event, upon such deposit being made, the writ petition will stand allowed and there will be fresh auctions in accordance with law. The deposits made by the petitioner and the respondent will be both to their respective credit in case any of them succeeds in the auction finally. Needless to mention, whoever fails in the end will be given back his money. In case the deposit as above is not made by Mr. Shahsi Nandan's client, the writ petition will stand dismissed and there will be no fresh auctions. The deposit is needed so that the State revenue has no chance of falling below what has already been secured.

No order as to costs.

Dated 20.12.2006.



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