Himachal Pradesh High Court
Nanak Chand & Anr vs National Highway Authority Of India & ... on 12 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 2496 of 2023 .
Reserved on: 10.09.2024 Date of decision: 12.09.2024 Nanak Chand & Anr. ...Petitioners Versus National Highway Authority of India & Ors.
...Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? Yes.
For the Petitioners: Mr. Maan Singh, Advocate.
For the Respondents: Mr. K. D. Shreedhar, Sr. Advocate with Ms. Sneh Bhimta, Advocate, for respondent No. 1.
Mr. Anup Rattan, A. G. with Mr. Y. W. Chauhan, Sr. Addl. A.G., Ms. Sharmila Patial, Mr. Navlesh Verma, Addl. A.Gs., and Mr. Raj Negi, Dy. A.G., for respondent No. 2.
Mr. S. C. Sharma, Sr. Advocate with Mr. Arvind Negi, Advocate, for respondent No. 3.
Tarlok Singh Chauhan, Judge Respondent No. 1 is the National Highway Authority of India, respondent No. 2 is Sub Divisional Magistrate, Manali and respondent No. 3 is Municipal Council, Manali, District Kullu.
2. It is averred by the petitioners that after completing the works of NH-3, a meeting was held in the office of ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 2 respondent No. 3 on 01.04.2019 regarding various issues inter alia allotment of parking lots between Bhootnath Temple to .
proposed four lane bridge to Municipal Council, Manali for management, maintenance and operation in lieu of the shops which had become unsafe. It is further averred that respondent No. 1 agreed for giving all parking lots between the aforesaid stretch and it is thereafter that respondent No. 3 through a public notice in Dainik Savera invited bids for allotment of two parking lots for collection of parking fees from the interested persons.
3. Accordingly, petitioners submitted the bids and they were allotted the same by respondent No. 3 vide allotment letter dated 09.06.2022. Petitioner No. 1 thereafter deposited Rs.18.80 lacs including GST of 18% and petitioner No. 2 deposited Rs.25,54,700/- including 18% GST with respondent No. 3. After allotment of the parking lots to the petitioners for the aforesaid purpose, they were handed over the possession and had been collecting parking fees since the date of allotment.
4. Later on, respondent No. 1 issued a notice for removal of encroachment of light and heavy vehicles on right side of NH-154 (old NH-21) dated 26.04.2023 and pursuant to that officials of respondent No. 1 came to the spot. The aforesaid notice was also addressed to respondent No. 3, who in turn had been asked to remove encroachment within three days, failing ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 3 which respondent No. 1 had threatened to remove the encroachment under Section 26(2) of the Control of National .
Highway (Land and Traffic) Act, 2002.
5. After the affixation of notice, the officials of respondent No. 1 came on the spot on 27.04.2023 for demolition of the parking space and when the petitioners resisted the demolition, then respondent No. 1 affixed notice dated 26.04.2023 outside the parking lots. However, apprehending demolition of parking lots, the petitioners after obtaining legal advice, filed a Civil Suit No. 88/2023, titled as Lalman vs. National highway authority of india and Ors. and Civil Suit No. 89/2023, titled as Nanak Chand vs. National Highways Authority of India in the court of learned Civil Judge, Manali, in which restraint orders were passed on 01.05.2023 and the civil suits were ordered to be listed on 12.05.2023. However, the civil suits were taken up suo motu by the learned civil court on 02.05.2023 and were dismissed as not being maintainable.
6. It is thereafter that the petitioners have filed the instant petition for grant of the following substantive reliefs:-
(i) That the annexure P-6, may kindly be quashed and set aside.
(ii) That respondent No. 1 may be directed not to take any steps for demolition of the parking lots Nos.
1 and 2 on NH-154/NH-21 and petitioners may be ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 4 permitted to collect parking fee as per allotment letters, till June, 2025.
.
7. Respondent No. 1 has opposed the petition by filing a detailed reply wherein it has been averred that the Central Government through Ministry of Road, Transport and Highway (MoRT&H) decided to construct four lane road in Kiratpur-Manali Section of NH-21 (old) now NH-3 (new). The replying respondent-
NHAI is an autonomous body of the Government of India and a nodal agency of the Ministry of Road, Transport and Highway (MoRT&H) responsible for management and constructions of highway networks in the country. The stretch subject matter of the instant petition falls in Kullu-Manali Project which is a total of 37.345 kms. (two lane 33.845 kms and four lanes 3.500 kms) road with paved shoulders includes 07 nos. of bridges (05 minor bridges and 2 nos. of major bridges) and the construction/up-
gradation of this stretch was awarded to M/s Gawar Construction Ltd. on Engineering, Procurement & Construction (EPC) mode.
8. It is averred that a meeting was held under the Chairmanship of respondent No. 2 on 01.04.2019 with respect to approach road towards HRTC Bus Stand and protection work of shops and mortuary. It was discussed in the meeting that the mortuary and toilets will be constructed by the contractor of the answering respondent provided that land is made available by Respondent no. 3. It was further discussed in the meeting that ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 5 both the parties i.e. NHAI and Municipal Council, Manali shall enter into separate written agreement/ Memorandum of .
Understanding wherein parking lots between Bhoothnath temple to proposed four lanes bridge be handed over to respondent No.
3. However, no Memorandum of Understanding (MOU) was signed by respondent No. 1 and the suit land was not handed over by Respondent no. 3.
9. It is averred that the land subject matter of the instant petition i.e. Khasra no. 40 Muhal RF-3 Dana Vihal and Khasra nos. 56/1 & 82/1/3, Muhal RF-4 Siyal Vihal in district Kullu (H.P.) has been acquired for construction/up-gradation of two/four lane road with paved shoulders in Kullu Manali Section of NH-03. As per the revenue records vide mutation No. 1 dated 02.07.2019 and mutation No. 1 dated 20.07.2019, the suit land stands registered in the name of Hon'ble President, Government of India. However, the municipal council/illegal taxi unions started collecting parking fee on regular basis since 01.04.2019 without the consent of the answering respondent.
10. It is averred that the issue of illegal encroachment and parking of large number of buses/ LMVs and tourist cars on the roadside has restricted the road width and may cause any mishap. The Right of Way was also occupied by signboards and river rafting equipment. Respondent No. 1 intimated about the said encroachment to Deputy Commissioner, Kullu vide letters ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 6 dated 25-02-2021, 22-03-2021, 01- 07-2021, 12-10-2021 and 25- 04-2023. However, no action was taken by the State .
administration. The contractor sent various letters to respondent No. 1 stating the difficulty to carry out work due to encroachment by the petitioners. It is thereafter that respondent No. 1 issued notices to the encroachers as per Section 26 of the Control of National Highway (Land & Traffic) Act, 2002. It is further averred that the encroachers cannot be allowed to occupy Government land.
11. It is averred that the issue of illegal encroachment was also discussed in the meeting dated 17.04.2023 held under the Chairmanship of Deputy Commissioner, Kullu. In the meeting, it was decided that the replying respondent should take over the parking which is under the unauthorized possession of Municipal Council.
12. It is averred that the bids were invited for construction of parking by National Highways Logistics Management Limited (NHLML) by the answering respondent but due to encroachment by respondent no. 3 and the petitioners, the width of the highway has been reduced and the process of initiating the construction of parking has been stalled. The said parking would cater to tourists and general public. It is averred that the said parking would be constructed in the acquired Right ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 7 of Way and the illegal encroachment is required to be removed at the earliest.
.
13. It is averred that as per the revenue record, vide mutation No. 1, dated 02.07.2019 and mutation No. 1, dated 20.07.2019, the land in question has been registered in the name of the answering respondent and thus, the petitioners have encroached over the land of the answering respondent and, therefore, the present petition is liable to be dismissed on the ground of suppressio veri, suggestio falsi.
14. The preliminary objections have been elaborated in the reply on merits and therefore, the same need not to be referred to.
15. Respondent No. 3 has not chosen to file its reply and as regards respondent No. 2 though it has filed its reply but the petition has not been contested and it has only been averred that a meeting was held in the office of replying respondent on 01.04.2019 in which respondents No. 1 and 3 were present and both the parties were agreed that they will enter into a separate written agreement/Memorandum of Understanding (MoU) in this regard.
16. We have heard learned counsel for the parties and have gone through the material placed on record.
17. It would be noticed that the entire case of the petitioners is based upon the proceedings that were held on ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 8 01.04.2019, the minutes whereof have been annexed by the petitioners as Annexure P-1 and read as under:-
.
"Proceeding of the meeting regarding Municipal council shops, Sulabh Shouchalya and Mortuary held on 01/04/2019 at 11:00 AM under the chairmanship of Sh.
Ashwani Kumar (HPAS) Sub Divisional Magistrate, Manali.
Following were present in the meeting:-
1. The Project Director, NHAI PIU Bagla Muhal Chakkar Tehsil Balah Distt. Mandi.
2. Smt. Neena Thakur, Chairperson, Municipal Council, Manali.
3. Sh. Dharam Chand Junior Engineer, Municipal Council, Manali.
4. Sh. Chaman Kapoor, Ward Member-5 Municipal Council, Manali.
5. Sh. Darshan Singh, General Manager, Gawar Construction Company, Dohlunalla.
At the outset of the meeting Chairman welcomed the all the Official and Non- Official member present in the meeting. Thereafter issues were taken up for discussion.
The matter w.r.t. Municipal Council Shops, Sulabh Shouchalya and Mortuary was discussed in detail. President, Municipal Council Manali said that the Municipal Council shops have become unsafe due to construction work of NH-03 and approach road towards HRTC Bus stand. Further Sulabh Shouchalya and Mortuary can also be collapsed if protection work is not ensured in time. Project Director, NHAI said that Mortuary and Sulabh Shouchalya will be constructed by the Gawar Construction as a part of CSR activity provided that land is made available by Municipal Council, Manali. Representative of ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 9 Municipal Council, Manali agreed for the same. Further Project Director, NHAI also proposed that NHAI is ready to give all the parking lots between Bhootnath temple to .
proposed four lane bridge to Municipal Council Manali for management, maintenance and operation in liu of the shops which is stated to have become unsafe. All the shops will be dismantled in order to give proper access to HRTC bus stand. Municipal Council accepted the proposal. It was agreed upon by both the parties that they will enter into a separate written agreement/ Memorandum of understanding (MOU) in this regard.
Meeting ended with positive note from all the members and thanks to the chair.
Endst. No. 632-36 /PA Dated the April, 2019 A copy is forwarded to:-
1. The Deputy Commissioner, Kullu for information.
2. The Project Director, NHAI-PIU Bagla Muhal Chakkar Tehsil Balah Distt. Mandi for information & necessary action.
3. The President, Municipal Council, Manali for information & Necessary action.
4. The Junior Engineer, Municipal Concil, Manali for information & necessary action.
5. The General Manager, Gawar Construction Company, Dohlunalla, Near Camping site, Raison for information & necessary action.
Sd/-
Ashwani Kumar (HPAS) Sub Divisional Magistrate"
18. It would be evidently clear from the aforesaid minutes that it had been agreed between respondents No. 1 and ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 10 3 that they would enter into a separate written agreement/MoU with regard to handing over of all parking lots between .
Bhoothnath Temple to proposed four lane bridge by the NHAI to the Municipal Council, Manali. The fact remains that no concluded contract was ever entered into between the parties.
19. The necessary ingredients under the provisions of Indian Contract Act, 1872 (for short 'the Act) for the formation of concluded contract have also to be taken into consideration.
20. Section 2 (a) of the Act defines 'Offer' and reads as under:-
"When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal."
21. An offer is the starting point of an agreement, which can be by words spoken or written or by conduct. There are certain essentials of a valid offer as under:
(i) Terms of the offer must be certain, definite and not vague
(ii) The offer must be distinguished from a mere declaration of intention
(iii) Offer must be communicated to the person to whom it is made
(iv) The offer should not contain a term the non-
compliance of which would amount to acceptance ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 11
(v) Special terms and conditions in the offer must also be communicated .
(vi) The terms of the proposal must be legal.
22. Section 2 (b) of the Act defines 'Acceptance' and reads as under:
"When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise."
The essentials of a valid acceptance are:
(i) There must be a communication of the acceptance to the offer or
(ii) The acceptance should be absolute and unqualified
(iii) Acceptance must be made before the revocation of the offer
(iv) Acceptance must be within the time specified by the offer or and if no time is specified it must be made within a reasonable time.
(v) Acceptance must be made in the form prescribed by the offer or and in the absence of any direction from the offer or, must be made in an usual and reasonable manner.
23. As per Section 2(e) of the Act, every promise and every set of promise, formulating the consideration for each other, is an agreement.
::: Downloaded on - 12/09/2024 20:31:51 :::CIS 1224. Section 2(f) of the Act envisages that promise which form the consideration or part of consideration for each other, .
which called reciprocal promise.
25. Section 2(h) of the Act envisages that an agreement enforceable by law is contract.
26. Section 3 of the Act talks about manner of communication, acceptance and revocation of proposals.
27. Section r 4 of the Act stipulates when the communication becomes complete.
28. Section 7 of the Indian Contract Act reads as:
In order to convert a proposal into a promise, the acceptance must -
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance.
29. A reading of this Section shows that acceptance of an offer must be absolute and unqualified. It is one of the essentials of an agreement that the acceptance must be a mirror image of the offer. If the offeree does not agree with the terms of ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 13 the offer as it has been proposed, the offer lapses and a new offer comes into place. It should be without condition and the .
terms of the offer cannot be altered nor there can be addition.
30. Leach, C. J. in Somasundaram Pillai vs. Provincial Government of Madras, AIR 1947 Madras 366 at 34, observed at page 367 as follows:
"To have an enforceable contract there must be an offer and an unconditional acceptance. A person who makes an offer has the right of withdrawing it before acceptance, in the absence of condition to the contrary supported by consideration. Does the fact that there has been a provisional acceptance, make any difference? We can see no reason why it should. A provisional acceptance cannot itself make a binding contract. There must be a definite acceptance or the fulfillment of the condition on which provisional acceptance is based."
31. Thus, offer and acceptance are essential requirements of the agreement. An offer is a proposal under Section 2(a) when the person making offer signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of other to such an act or abstinence.
When the person to whom the proposal is made signifies his assent to the proposal, the acceptance turns into a promise, as per Section 2(b). It is the every promise and every set of promises forming the consideration for each other is what would constitute an agreement under Section 2(e) and an agreement ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 14 enforceable by law is a contract under Section 2(h) of the Contract Act.
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32. The requirement under Section 7 of the Contract Act is that the acceptance must be absolute and unconditional.
Whereas, Section 8 and 9 indicate that the acceptance can be express i.e. in words or by conduct. It need not be emphasized that conduct can be construed as acceptance only when the conduct discloses clear and unequivocal intention of accepting the offer. Hence, only when the facts of the case disclose that there was no reservation in signifying acceptance of the offer, it can be said to have been accepted by conduct. Whereas, if the facts disclose that the offeree had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act. Section 10 of the Contract Act postulates that the agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the Contract Act.
33. As it has been held by the Hon'ble Supreme Court in Bhagwandas Govardhasdas Kedia vs. Girdharilal Purshottamdas & Co. & Ors. AIR 1966 SC 543, an agreement does not result from mere state of mind, intent to accept an offer or even a mental resort to accept an offer does ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 15 not give rise to a contract. If there be 'no meeting of mind' no contract may result. Hence the rule is that two minds must be ad .
idem with the terms of offer and its acceptance, in consonance with the mirror image rule.
34. In M/s. Padia Timber Company Pvt. Ltd. vs. The Board of Trustees, Vishakapatnam (2021) 3 SCC 24, the Hon'ble Apex Court while analysing the fundamental contractual principles of offer and acceptance has highlighted that the offer and acceptance of the offer must be based on three components viz., certainty, commitment, and communication. It has been observed that it is trite law that while deciding whether a contract has been concluded, parties ought to keep in mind that acceptance of an offer must be absolute and unqualified.
Acceptance with the variation of conditional acceptance would be in effect counter proposal and would not be a concluded contract, unless such variation or condition is accepted by the original proposer.
35. All these provisions of law would only show that a beginning of a contract is made by a specific and concrete proposal given by one party to another, showing one party's willingness to do something or to abstain from doing something and it is given with a view to obtaining the consent of other party to the proposed act or abstinence. The conclusion of the contract ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 16 occurs when there is an unconditional and unqualified acceptance of the proposal by the other party and its .
communication to the party making the proposal. If there is no specific and clear proposal or offer, it's unconditional acceptance.
36. As observed above, earlier there is no concluded contract between respondents No. 1 and 3 and, therefore, respondent No. 3 had no to authority whatsoever outsourced the collection of parking fees of the parking places belonging to respondent No. 1. Therefore, the petitioners have to have no enforceable cause of action or right against respondent No. 1 and as a matter of fact they are trespassers over the property belonging to respondent No. 1.
37. Once that be so, obviously the petitioners cannot retain the possession over the parking lots and are directed to handover the peaceful and vacant possession to respondent No. 1 on or before 30.09.2024 latest by 2:00 p.m. or else in addition to any other action that may be taken against them, they shall be liable to be prosecuted and punished under the Contempt of the Courts Act.
38. The fee collected by respondent No. 3 for the parking lots as per the accounts maintained pursuant to the order passed by this Court, be deposited by respondent No. 3 in the accounts ::: Downloaded on - 12/09/2024 20:31:51 :::CIS 17 of respondent No. 1, after deduction of actual expenses within the aforesaid time.
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39. Shri Maan Singh, learned Advocate, would vehemently argue that he has deposited the lease money and such lease has been granted to him by respondent No. 3 up to June, 2025 and, therefore, he be permitted to retain his possession or in the alternative he may be afforded an amount from respondent No. 3.
r to opportunity to take appropriate action for recovery of the
40. As observed above, petitioners have no enforceable right against respondent No. 1 and as regards their right to recover amount from respondent No. 3, liberty is reserved in their favour to approach the competent authority/court for the said purpose.
41. Writ petition is disposed of in the aforesaid terms, so also pending applications, if any.
For compliance to come up on 01.10.2024.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
12 th
September, 2024 Judge
(sanjeev)
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