Patel Tolls vs State of M.P.

Heard.

The petitioner has filed this petition against the order dt. 12.5.2009 (Annexure P/1), by which the penalty of Rs. 1,72,877/- was imposed against the petitioner.

The petitioner was awarded a contract for recovery of toll tax w.e.f. 1.4.2009 up to 31.3.2010. Subsequently, in inspection it was found that the petitioner had been recovering in excess of the toll amount contrary to the terms and conditions of the contract. Consequently, a warning was issued to the petitioner. Thereafter, a show cause notice was issued on 19.6.2009 and his contract was cancelled vide order dt. 27.6.2009. Against the order of cancellation of contract, the petitioner filed a writ petition before this court, it was registered as W.P. No. 2826/09 (M/s. Patel Tolls Vs. State of M.P. and others) and the aforesaid Writ Petition was disposed of by this Hon''ble Court vide order dt. 16th July 2009 with the following directions:-

Furthermore, from perusal of these statements, it appears that these statements were recorded by the Tahsildar and not by the Chief Executive Officer. Thus, the enquiry is not conducted by the Chief Executive Officer and he has relied upon the report of the City Magistrate and Sub Divisional Officer, Gwalior. Copy of the said report is Annexure P/2 on record which bears the signatures of the City Magistrate and Sub Divisional Officer. This report also nowhere shows that the present petitioner was heard before preparing the said report or he was afforded any opportunity of hearing by the authorities preparing the report.

From perusal of the impugned order Annexure P/1 it is further clear that the Chief Executive Officer has merely narrate the facts in the three pages and concluded by saying that the petitioner has violated the terms of contract. The impugned order nowhere reflects application of mind by the Chief Executive Officer much less defence of the petitioner. He has merely reiterated the facts and held that the reply filed by the petitioner is not satisfactory. Thus, there is no consideration on merits by the Chief Executive Officer.

In such circumstances, impugned order Annexure P/1 deserves to be quashed and is hereby quashed. We, however, make it clear that it is still open to the Chief Executive Officer of respondent No. 2 Special Area Development Authority to hold enquiry in the matter and pass appropriate orders after hearing the petitioner and after supplying him the material on the basis of which the action is taken against the petitioner. The respondents, if so choose, may depute their own officials at the barrier in question to check whether the petitioner did receive any amount excess to the prescribed rates from the vehicles, and for putting check on the petitioner from recovering excess amount, till the enquiry, if any, held by the enquiry officer is concluded.

This court quashed the proceedings in regard to termination of contract on the ground that no sufficient opportunity was afforded to the petitioner. The penalty was imposed against the petitioner on the basis of same proceeding.

Learned counsel appearing on behalf of the respondent SADA has strongly contended that imposition of penalty is in accordance with law because the petitioner violated the terms and conditions of the agreement.

We are not in agreement with the argument advanced by the learned counsel for the respondent-SADA. When the order of termination of contract was set aside by this court, which was passed on the basis of same proceeding, then the penalty could not be imposed against the petitioner on the basis of the same proceeding.

Hence, the petition is allowed. Impugned order dt. 12.5.2009 (Annexure P/1) is hereby quashed. The amount, which is recovered from the petitioner, be refunded to the petitioner within a period of two weeks from the date of receipt of copy of the order.

No order as to costs.