Writ Appeal Nos. 1025 and 2172 of 2007 (against O.P. No.11166/1998)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 **WA.No. 1025 of 2007()** **---------------------** AGAINST THE JUDGEMENT IN OP.11166/1998 Dated 21/02/2007 .................... APPELLANT/1[st] RESPONDENT: ------------------------------- B.ANILKUMAR,ASHOKBHAVAN,ATTINGAL, THIRUVANANTHAPURAM. BY ADV. SRI.P.PUSHPARAJAN SRI.O.K.MURALEEDHARAN SRI.K.C.KIRAN SHRI P.BENJAMIN PAUL,SC, KSRTC RESPONDENTS/PETITIONER AND RESPONDENTS 2 TO 4: --------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY IS MANAGING DIRECTOR,TRANSPORT BHAVAN,EAST FORT,TRIVANDRUM. 2. ADDITIONAL SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT,THIRUVANANTHAPURAM. 3. SECRETARY,PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 4. STATE OF KERALA REPRESENTED BY CHEIF SECRETARY. R1 BY ADV. SHRI P.BENJAMIN PAUL,SC, KSRTC BY SR. GOVERNMENT PLEADER ADV. SMT. K. MEERA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011, ALONG WITH W.A NO. 2172 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J.** **--------------------------------------** ## **W.A. Nos.1025 & 2172 OF 2007** **--------------------------------------** **Dated this the 29[th] August, 2011** ## **J U D G M E N T** ## **J. Chelameswar, CJ.** Two Original Petitions, O.P.Nos.11166 of 1998 and 5093 of 1998 were heard and disposed of by a common judgment dated 21.02.2007. These two appeals are preferred aggrieved by the said common judgment. The appellant is the same in both the appeals. He was the first respondent in O.P.No. 11166 of 1998 and the petitioner in O.P. No.5093 of 1998. For the sake of convenience, the parties are referred to in this judgment as they were arrayed in OP. 5093 of 1998. 2. The facts leading to the litigation are as follows: A new bridge across the Mamom river at Kms 537/200 on N.H.47 was constructed and commissioned for traffic on 22.12.1988. There **2** ## **W.A. Nos.1025 & 2172 OF 2007** exists a parallel old bridge across the above mentioned river which was in use prior to the construction of the above mentioned new bridge. 3. In exercise of the powers conferred by section 9 of the National Highway Act, 1956, the Government of India made the Rules known as National Highways (Fees for Use of Permanent Bridges) Rules, 1992. Rule '3' thereunder authorises levy and collection of fee from the mechanical vehicles for the use of permanent bridge specified in the schedule annexed to the Rules. Such fee is to be paid to the 'executing agency' as defined under the expression Rule 2(a). The expression _'permanent bridge'_ is also defined under Rule 2(f). Rule 5 authorises collection of fee (referred to under Rule 3), either by the 'Executing Agency' directly or through private contractors engaged for the said purpose on the basis of competitive bidding. The petitioner admittedly was the successful contractor, who was chosen by the executing agency for the purpose of **3** ## **W.A. Nos.1025 & 2172 OF 2007** collecting the fees for the periods 12.04.1993 to 31.03.1994 and 01.04.1994 to 31.04.1995. Unfortunately, the contract entered into between the petitioner and the executing agency are not available on record. It appears from the record that initially the petitioner was doubtful whether the privilege to collect the fee included the privilege to collect the fee from the vehicles belonging to KSRTC (first respondent). Therefore he submitted two tenders, one for an amount of Rs.31,00,051/- and another for Rs.16,00,051/-. The earlier is the amount, which the petitioner offered to pay the executing agency in the event of his being permitted to collect the fee from the vehicles belonging to the first respondent. It appears that the petitioner was informed that he would be entitled in the event of his becoming the successful bidder to collect the fee from the first respondent also and he was advised to withdraw the second of the above mentioned offers, which was accordingly withdrawn. It also appears from the record that notwithstanding the contract **4** ## **W.A. Nos.1025 & 2172 OF 2007** between the petitioner and the executing agency, the old bridge continued to be in use at least for some time during the currency of the contracts. The reasons and background for such use may not be necessary for the purpose of this appeal. In view of the said fact the petitioner had approached this Court earlier in O.P.No.3484 of 1994 , in substance, seeking for a direction to the respondents therein (i.e., the State and the first respondent herein) to ensure that all the vehicles use only the new bridge, but not the old bridge. During the pendency of the said OP, it was decided by the State that all the vehicles, except two and three wheelers, should necessarily use the new bridge alone and appropriate measures were taken to prohibit the use of the old bridge. 4. In the background of the above mentioned facts, the petitioner had once again approached this Court earlier in O.P.Nos. 13845 of 1994 and 15810 of 1994. It appears that the above mentioned Original Petitions were disposed of by a **5** ## **W.A. Nos.1025 & 2172 OF 2007** common judgment dated 29.09.1998. Unfortunately, the copies of the above Original Petitions nor the judgment is available on record. From Ext.P1 Government Order No.1180/96/PW &T dated 30.07.1996, it appears that by the above mentioned judgment, this Court directed the petitioner herein to give a detailed representation to the Government of Kerala and the Government of Kerala was directed to consider the same and pass appropriate orders. Pursuant to the said direction, the petitioner herein submitted a representation dated 13.10.1995 which was disposed of by the above mentioned Government order dated 30.07.1996 (Ext.P1). It can be seen from the above mentioned Government Order that the claim pertained to two periods, i.e. 12.04.1993 to 31.03.1994 and 01.04.1994 to 31.03.1995. The first respondent admitted before the Government that, with reference to the first of the above mentioned two periods, the first respondent did not make any payment to the petitioner. The claim of the petitioner with **6** ## **W.A. Nos.1025 & 2172 OF 2007** reference to the first of the above mentioned periods was considered by the Government and rejected after recording a finding that from the materials on record it was clear that the first respondent did ply its vehicles only on the old bridge for the relevant period. 5. Coming to the second of the above mentioned periods, the Government opined that the writ petitioner is entitled for an amount of Rs.11,11,500/- and directed as follows: _“Accordingly, for the 190 days from 23.09.1994 to 31.03.1995 the total amount payable is seen to be 190 x 260 x 22.50 =11,11,500/-. An amount of Rs.4,70,000/- has already been paid by KSRTC to Shri Anil Kumar. Hence the balance payable is Rs.6,41,500/-. I direct that the amount of Rs.6,41,500/- (Six lakhs fortyone thousand and five hundred only) will be paid immediately by KSRTC to Shri Anil Kumar, Contractor in this case.”_ 6. Pursuant to the said determination, the petitioner herein had once again approached this Court by way of O.P.No.13726 **7** ## **W.A. Nos.1025 & 2172 OF 2007** of 1996, which was disposed of at the admission stage on 27.09.1996 on the basis of a concession made by the learned Counsel for the first respondent that the first respondent would implement the directions of the Government and make payment within a period of three months from the date of the said judgment. The operative portion of the judgment reads as follows: _“When this matter came up for admission, I heard counsel for the petitioner and standing counsel for the Kerala State Road Transport Corporation. Counsel for the Corporation fairly submitted, Exhibit P1 will be implemented and the amount due to the petitioner will be paid within three months from today. This submission is recorded. Original petition is disposed of accordingly.”_ 7. It appears that the petitioner herein submitted a petition styled as Review Petition on 05.03.1997 which came to be considered and disposed of by Government Order [G.O.(Rt.) **8** ## **W.A. Nos.1025 & 2172 OF 2007** No.371/97/PWD dated 21.11.1997, (Ext. P4)], where the various submissions made by the petitioner were elaborately considered and ordered as follows: _“Having heard the parties and verified the documents, the Special Secretary (PWD) had assessed that an average 270 KSRTC vehicles per day had plied through Mamom bridge during the period in question. As per schedule of rate and conditions of toll charge KSRTC has to pay Rs.15/per bus per single trip. Considering the fact that one bus crosses the bridge minimum twice in a day and as KSRTC has not made any advance payment, the petitioner is eligible to get Rs.30/per bus per day for the period from 26.04.1994 to 31.03.1995 i.e, 340 days x 270 x 30 = 27,54,000/-. Deducting the amount of Rs.11,11,500/- already paid by the KSRTC- the net amount payable will be Rs.16,42,500/-. The argument of the KSRTC that the petitioner is estopped from contending that the Government Order dated 30.07.1996 in Ext.P1 in which an amount of Rs.6,41,500/- was ordered to be paid is not acceptable to him since he had sought_ **9** ## **W.A. Nos.1025 & 2172 OF 2007** _enforcement of the same by approaching the Hon'ble Court instead of challenging the same is not correct. Government therefore order that the amount of Rs.16,42,500/- (Rupees sixteen lakhs, forty two thousand and five hundred only) be paid immediately by KSRTC to Shri Anilkumar, Contractor (Review Petitioner) in this case being the toll charges from 26.4.1994 to 31.3.1995. The review petition dt. 5.3.97 of Shri B. Anilkumar is disposed of as above._ ” 8. It is this order which is the subject matter of litigation in the Original Petitions, from which the instant two appeals arise. In the original petition filed by the first respondent, i.e. O.P.No. 11166 of 1998, the legality of the said order is challenged; whereas in the original petition filed by the petitioner, (O.P.No.5093 of 1998), implementation of the said order is sought for. 9. Both the original petitions were heard together and disposed of by a common judgment. By the said judgment, a learned Judge of this Court has held that Ext. P4 is patently **10** ## **W.A. Nos.1025 & 2172 OF 2007** illegal, arbitrary and unsustainable and quashed the same. Hence the appeals by the petitioner. 10. The learned Judge opined that there is no authority for the Government to review the order in Ext.P1. Secondly, it was held that, assuming for the sake of argument, the Government had the necessary authority to review an earlier decision (evidenced by Ext.P1), such power of review could not be exercised by an officer inferior in rank to the officer who took the decision in Ext.P1 as was done in the case. Thirdly, the learned Judge held that the petitioner herein, having had approached this Court earlier in O.P.No.13726 of 1996 with a limited prayer of seeking the implementation of the decision evidenced by Ext.P1, is not entitled to seek any further relief based on the same cause of action. In other words (though it is not expressly held by the learned Judge), the petitioner is barred by a principle akin to the principle of constructive res judicata. 11. Heard the learned Counsel for the appellant as ## **W.A. Nos.1025 & 2172 OF 2007** ## **11** well as the respondents. 12. We see no reason to interfere with the judgment under appeals as the learned Judge rightly held that the power to review is not inherent in any adjudicatory body unless it is expressly conferred by law. More particularly in the context of quasi judicial authorities, the said principle is applied with all force. The proposition is well settled in law . The decision referred to by the learned single Judge in support of this proposition (i.e. [ **(1987)4 SCC 525** ] _**Kuntesh Gupta vs. Management of Hindu Kanya Maha Vidyalaya**_ ) clearly lays down this proposition in paragraph 11 as follows: _“It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the U.P. State_ ## **W.A. Nos.1025 & 2172 OF 2007** ## **12** _Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7,1987. The said order of the Vice-Chancellor dated March 7, 12987 was a nullity”._ On that count alone, in our view, Ext.P4 order must be held to be illegal. Apart from that, the petitioner herein had approached this Court earlier by way of O.P.No.13726 of 1996. with limited prayer, which reads as follows: _“Petition filed under Article 226 of the Constitution of India praying that this Honourable Court may be pleased to issue;_ _i) a writ of mandamus or other appropriate writ, order or direction compelling and commanding the respondents to pay the amount of Rs.6,41,500/- as directed in Exhibit P1 to the petitioner forthwith_ **13** ## **W.A. Nos.1025 & 2172 OF 2007** _ii) issue such other writs, orders or direction as this Hon'ble Court deems necessary in the nature of this case, and_ _iii) award the petitioner, his costs. ”_ 13. The petitioner is clearly barred from disputing the correctness of Ext.P1, as he did not challenge the correctness of the said decision nor did he seek the leave of this Court to question the correctness of the said decision in so far as it denied some relief which the petitioner desired. More over, assuming for the sake of argument that, for some reason, Review, such as one evidenced by Ext.P4 is permissible in law (we say so only for the sake of argument), Ext.P4 order reads more like an appellate order, where the entire dispute between the petitioner and the first respondent is re-examined afresh. By any stretch of imagination, such an examination is beyond the scope of jurisdiction of any Body conferred in law with the authority to review its order. **14** ## **W.A. Nos.1025 & 2172 OF 2007** 14. Looked at any angle, we do not see any reason to interfere with the judgment under appeal. Both the appeals are dismissed. The interim order passed during the pendency of the appeals stands vacated. **J. CHELAMESWAR, CHIEF JUSTICE.** **P.R. RAMACHANDRA MENON, JUDGE.** lk