R.M. Sahai and; N.P. Singh, JJ.
1. Leave granted.
2. This appeal is directed against an interim order granted by the High Court of Judicature at Allahabad on 27-1-1994 to the following effect:
“Heard learned counsel for the petitioner and the learned Standing Counsel.
Issue notice.
Until further orders of this Court, the operation of the notification dated 3-9-1993 (Annexure 12 to the writ petition) shall remain stayed and the respondents are restrained from interfering with the petitioner's right of collection of toll tax over bridge Shadra Nala from Dadri Surajpur Chalera Marg to Okhla Barrage Approach Marg at 3 kms in District Ghaziabad.”
3. Although normally this Court does not entertain petitions against interim orders passed by the High Courts, but the facts are so glaring that this Court would be failing in its duty in permitting the said order passed by the High Court to remain on record.
4. A bridge was constructed on Shadra Nala from Dadri Surajpur Chalera Marg to Okhla Barrage Marg at km 3 in District Ghaziabad. It was constructed in the year 1991 and was opened to traffic in the same year. In exercise of powers under Section 2 of the Indian Toll Act, 1851, and in accordance with the provisions of paragraph (1) of Notification No. 2174/23-Ba-Ni-II-62/76 dated 2-6-1976, the tolls were levied on the said bridge vide Notification No. 99/23-PW-II-56(4)/90 dated 26-4-1991 on the rates and terms and conditions laid down in the aforesaid notification. The toll was realised from 9-7-1991 till 10-7-1992 by the Department itself. On 21-4-1992, a public auction was held and the right to collect toll tax was settled in favour of the highest bidder Shri Hardan Singh, the respondent. After expiry of one year some dispute arose whether the right to collect toll tax was given to Shri Hardan Singh for three years or one year and when the Government renewed his contract for two years some of other contractors filed writ petitions in the High Court for a direction to the Government to cancel the settlement in favour of the respondent. While these petitions were pending, the Government of India by letter dated 31-5-1993 informed the State Government that the toll barrier at Okhla was causing great inconvenience to the public and the industries were facing various problems. The Government of India, therefore, suggested that it would be better if there was no toll barrier at Okhla Bridge. This letter of the Government of India was examined by the State Government and on 3-9-1993 the State Government cancelled its earlier notification issued on 26-4-1991 for realisation of toll from the aforesaid bridge. Consequently, the petitions filed by other contractors were dismissed as infructuous. Thereafter, the respondent filed the writ petition assailing the notification issued by the State Government on 3-9-1993. It was in this petition that the order extracted above was passed.
5. Realisation of toll is for recovery of the expenditure incurred by the Government in constructing the Bridge. Once the Government decided that it was in public interest not to realise any toll tax and issued the notification on 3-9-1993, it is difficult to appreciate how can a contractor claim that the notification was bad and there is still greater difficulty in appreciating how could the High Court have passed such an interim order forcing the public to pay toll tax to a contractor and that too for whose benefit. The Government was not interested in recovering the expenditure made by it, it withdrew its notification. Then what right subsisted in the contractor to claim that since the Government had entered into an agreement to permit the respondent to collect toll for three years, his right should be protected. Needless to say that the contract, if any, stood frustrated by issuance of notification on 3-9-1993 and there was no question either of entertaining the petition or granting any interim order.
6. Nobody has appeared for the respondent obviously because once this Court stayed the realisation of toll by its Order dated 28-3-1994, then the respondent lost every interest in pursuing the matter further.
7. In the result, this appeal succeeds and is allowed. The order passed by the High Court is set aside. Since the respondent has not appeared, he has escaped the exemplary cost which we would have imposed otherwise.