Uma Shankar Kesharwani vs State of M.P.

Rajendra Menon, J.—Calling in question tenability of an order dated 22.8.2012 and certain communications dated 4.10.2012 issued by respondents No. 3 and 4 in the matter of claiming certain damages from the petitioner for loss caused to the State Exchequer due to burning of a truck carrying certain ''Bardanas'' (Gunny Bags), this writ petition has been filed.

Facts in brief which are available on record goes to show that the petitioner is Proprietor of an establishment named "Niraj Roadlines", Sagar and was awarded a contract for ''Handling a Long Route Transport'' by the M.P. State Civil Supplies Corporation Limited. As per the contract the petitioner was required to load/unload/stack the ''Bardanas'' (Gunny Bags) from Railway Rake Point Sagar and transport the same to the various destination points as may be required by the respondents. The contract agreement is Annexure P/1 and there is no dispute that the contract was awarded and in pursuance to the contract the petitioner was performing the work. However, on 17.5.2012 the Sub Divisional Magistrate, Tikamgarh passed an order and acquired the truck for Government purposes. The number of the Truck was Truck No. UP-93-E-8757 and this was done by the Sub Divisional Magistrate in exercise of his powers under Section 160 of the Representation of Peoples Act, 1951. The vehicle in question belong to one Sangita Gupta of Jhansi and along with the said vehicle various other vehicles of other Contractors was also acquired/requisitioned by the Sub Divisional Magistrate and the petitioner was in possession of this truck and was using it for execution of his contract. A copy of the order passed by the Sub Divisional Magistrate on 17.5.2012 is Annexure P/3. On 17.5.2012 apart from this truck various other trucks were also attached/requisitioned or acquired by the Sub Divisional Magistrate as is evident from the list Annexure P/5.

On 18.5.2012 a Full Rake of Bardana consisting of 5460 bundles arrived at Railway Rake Point Sagar and as per the loading agreement, petitioner unloaded the same from the Railway Rake through his labourers. It is the case of the petitioner that after unloading it the petitioner was willing to take the goods and transport them to the destination as may be required but the authorities of the respondents did not permit the petitioner to do so but got the entire material loaded in Truck No. UP-93-E-8757 and also in various other trucks and by nominating Government officers who went along with the truck transported the material to various places.

In Truck No. UP-93-E-8757 transportation was ordered likewise and one Shri H.K. Bilgaiya, Rural Agriculture Development Officer, Tikamgarh was deputed to go along with the truck to ensure its delivery to its destination. It seems that in between Tikamgarh and Kundeshwar, the truck caught fire and the entire Bardanas were destroyed. As a result now the amount of loss caused to the Government is assessed at Rs. 10,65,000/- and the amount is being recovered from the petitioner. The case of the petitioner is that for the loss caused to the Government and the fire that took place in the truck, the petitioner was not responsible as neither the petitioner was in the truck, it was not in his custody or possession when the accident took place nor is the petitioner responsible for the accident. Referring to the documents and material available on record in this regard, particularly the enquiry report with regard to the fire in question available on record as Annexure P/7 and the Panchanama Annexure P/6, Shri Anil Khare, learned Senior Counsel argued that in this report it is clearly indicated that the truck all of a sudden caught fire. The driver and the occupants of the truck did not know about the fire. It was only when a motorcycle rider who came from behind informed the driver about the fire, that the truck was stopped and the action taken for putting the fire off. Referring to the enquiry report and material available on record, it is the case of the petitioner that once the truck was taken over by the Government authorities and the material was being transported in the truck after such acquisition by the Government Officers under their supervision and control, the petitioner cannot be held responsible for the loss caused to the State Government and the action taken for recovery of the amount from the petitioner is unsustainable.

Shri Shobhit Aditya, learned counsel for the respondents refuted the aforesaid and argued that as petitioner had entered into the contract and as per the terms and conditions of the contract hold the petitioner liable to refund any loss caused to the Government. It is argued by him that no error has been committed by the respondents for recovering the amount from the petitioner. Shri Shobhit Aditya has filed a detailed reply to say that action is taken by the respondents in view of Clause 8.6 and 8.7 and other provisions of the Contract which permits the respondents to recover any such loss that caused to them because of petitioner''s negligence and as the action is taken in accordance to the requirement of law, there is no error in the matter.

We have heard learned counsel for the parties and we have gone through the record. It is to be noted that when the matter was being heard by this Bench on 2.5.2014 after considering the contentions, the following observations were made by this Court:-

"Having considered the rival contentions, prima facie the material available on record does not show that the petitioner can be held responsible for the loss caused to the respondents/Corporation because truck in question was requisitioned by the District Administration exercising their powers under Section 160 of the Representation of People Act and there is no document or material available on record to show that after requisition of the truck, the entire truck along with its driver and other material was handed over to the petitioner and a direction was issued to the petitioner to transport the food grains in the said truck. In the absence of any material to show that the truck was handed over to the petitioner and consequently, there was negligence on the part of the petitioner in using the truck which belongs to a third party, prima facie the imposition of penalty on the petitioner and recovery imposed is unsustainable. When such a query was made, learned counsel for the respondents wants to file additional return and clarification in the matter. He may do so."

Thereafter an additional reply and affidavit has been filed by respondent No. 2 and in para 3 they only say the following:-

"That the answering respondents have already submitted that the vehicle (truck) in question was requisitioned by the District Administration under the Representation of Peoples Act for speedier transportation of the foodgrains under the PDS and the same has been handedover to the petitioner being the contractor of the answering respondents. The answering respondents issued challan dated 18.5.2012 by mentioning the registration No. of the vehicle (Truck) and name of the driver in question, and petitioner also submitted bilty No. 1206 dated 18.5.2012 to answering respondents for claiming transportation charges as per the terms of the contract. A copy of Challan dated 18.5.2012 is filed herewith as Annexure R/1 and a copy of Bilty No. 1206 dated 18.5.2012 is filed herewith as Annexure R/2."

The aforesaid contentions of the respondents is not complete nor is it in requirement to the directions issued by us on 2.5.2014.

Be it as it may be, it is seen from the records that even though there was a contract agreement between the parties and the petitioner was held responsible not only for loading and unloading but also transporting through his truck and the petitioner as per the contract is also required to reimburse the respondent corporation in case of any loss caused to the Government.

But the facts and circumstances of the case have to be evaluated to see as to whether the fire that took place and which destroyed the material being transported can be attributed to any act while the transportation work was being undertaken by the petitioner in pursuance to the contract.

The petitioner can only be held responsible for the loss caused, if the transportation was being undertaken by the petitioner in accordance to the requirement of the contract. That being so, we propose to analysis the facts available on record. It is seen that after the contract was awarded and when the petitioner was carrying out the work, the Sub Divisional Magistrate, Tikamgarh on 17.5.2012 passed an order exercising the powers available to him under Section 160 of the Representation of Peoples Act, 1951 and Truck bearing No. UP-93-E 8757 was attached/acquired by the said officer and one Shri Jagdish Driver was deputed to take over the truck and report to the Collector for necessary action. Thereafter in the Truck certain materials were loaded and the Corporation nominated officers of the State Government to supervise the loading and transportation of the material to various places. As far as the present case is concerned, it is seen that one Shri H.K. Bilgaiya, Rural Agriculture Development Officer, Tikamgarh was appointed and the said officer went with the truck when the material was being transported. The Panchanama Annexure P/6 and the findings in the enquiry available in Annexure P/7 goes to show that the truck after such acquisition by the competent authority of the State Government under the control and Supervisor of Shri H.K. Bilgaiya was transporting the material and when the truck reached a place in between Kundeshwar and Tikamgarh and motor cycle rider came from behind and informed the truck driver and its occupant that the truck has caught fire at the back side and thereafter the fire was extinguished and loss caused. From the aforesaid narration of fact it would be seen that at the time and on the date when the aforesaid incident of fire took place the truck was not in the possession of the petitioner. The Truck was in the custody and possession of Sub Divisional Magistrate who had acquired the truck by exercising the powers available to him under Section 160 of the Representation of Peoples Act and thereafter the truck was taken in custody by the said officer and it was the competent authority of the respondents who nominated a person to take the truck after it was loaded with the material and transportation was being undertaken under the control of the State Government official after the truck was acquired. That being so, when the incident of fire took place and when the loss was caused to the Government, neither was the petitioner in possession of the truck nor was he transporting the material. Merely because there is some challan showing that truck was being used by the petitioner, he cannot be held responsible. Once it is clear that neither he was in possession of the truck nor was he responsible for transporting the material in truck.

The incident took place because of accident which happened when the truck was in possession of authorities of the State Government or Corporation and when the transportation was being undertaken under their supervision through their nominated representative H.K. Bilgaiya. Under such circumstances we are unable to accept the contention of the respondents that the petitioner is responsible for the loss caused to the State Government. It is not known as to how petitioner can be held responsible when petitioner is not in possession of the truck and is not responsible for transportation of material or for the accident in question.

The Terms and conditions of agreement would apply in normal circumstances when it is the petitioner who is executing the contract as per the agreement and is transporting the material, with the vehicle is in his custody and is also in his ownership and possession. In this present case, all these eventualities are not available and once the truck was taken over by the competent authority as indicated herein above, the responsibility of preventing any loss to the State Government was on such authority who had acquired the Truck and has taken the responsibility of transportation.

Keeping in view the aforesaid We are of the considered view that the respondent Corporation cannot transfer the liability for the said loss to the petitioner when there is nothing available on record to show that petitioner is responsible for transportation when the vehicle was not in the ownership or possession of the petitioner at relevant time due to acquisition of the same. That apart, in the additional return filed by the respondents except for filing certain challans with regard to transportation of the vehicle, nothing is brought to our notice to say that the petitioner was in custody of the vehicle and it was responsible for transportation of the same. In view of the above, we are of the considered view that the State Government cannot recover the amount from the petitioner. If any amount is recovered, the same be refunded back to the petitioner.

In view of the above, this petition is allowed. Orders impugned are quashed. Amount recovered shall be refunded to the petitioner along with interest at the rate of 6% per annum from the date it was recovered till its reimbursement by the respondent No. 2 Corporation.

With the aforesaid, this petition stands allowed and disposed of.