Writ Petition No. 108 of 2004 · Uttaranchal High Court · 2006

facts that the petitioner has challenged the impugned order dated 04.02.2004 on the ground that increase was made as per Clause (9) of the amended agreement clause and the Executive officer, Nagar Palika illegally required the petitioner to withdraw the increase in the fare w.e.f.

16.01.2004 and hence it has been prayed for quashing of the same and further prayed that in view of the substituted clause (9), the Municipal Board may be restrained from taking any action in pursuant to the impugned order dated 04.02.2004 and further writ has been prayed directing the respondents not to interfere in any manner and/or obstruct the operating of the Ropeway of the Petitioner at Mansa Devi Temple, Hardwar.

6. A counter affidavit has been filed in which the respondents have the pleas regarding maintainability of the writ petition. First plea which ahs been taken in the counter affidavit is that the petitioners have an alternative remedy by way of filing a suit, secondly in view of clause 14 of the agreement dated

15.05.1994, i.e. the Principal Agreement which provides for settlement of dispute between the parties, if any, by the Arbitrator and in case of dispute, this Arbitration clause may be invoked. On the merit of the writ petition, it has been stated by the respondents as under:- (f) That on 15.5.1974 an agreement (Principal into between the Agreement) was entered petitioner as well as respondent no. 2 with regard to the establishment of the rope-way at Haridwar for the visitors and devotees to travel to the temple of Godess Mansa Devi which is on hilltop. In the agreement there was clause 9 wherein it was agreed that initially petitioner no. 1 would charge a fare of Rs. 2/- exclusive of Local, State or Central taxes or duties etc. per passenger for return journey with the option to increase or decrease the fare as it may be decided appropriate from time to time. The fare was fixed on the prevailing prices as on 6th August 1973 of raw material, machinery, wire rope, spares and stores, power, wages and salary costs, duties, levies, taxes etc. It was also agreed that if there is any increase in the costs / prices of those items or any of them, increase subject to the approval of the answering respondent Haridwar. fare shall be correspondingly i.e. Nagar Parishad, Palika (g) That thereafter in the year 1981 when the ropeway started, the fare was fixed at Rs. 3 after duly considering the necessary facts as per clause 9 of the agreement dated 15.5.1974. Thereafter the fare was increased from time to time and on 3.4.1995 the rate of Rs. 13/- per passenger for to and fro journey was approved by respondent no. 2. On 17.10.1995 the petitioner company has demanded for the rise in its fare to Rs. 20 instead of Rs. 13 and keeping aside the terms as were provided in clause 9 of the original agreement, they had raised the fare to Rs. 20/- per passenger w.e.f. 15.11.1995. Thereafter the public raised an outcry and there were a great public resentment against this arbitrary increase as it was felt that the petitioner is unduly exploiting his monopolistic position. Consequently the then Board has resolved in its meeting dated 29.12.1995 that the petitioner company shall charge only Rs. 13/- per passenger for to and fro journey. a

16.1.1996 (h) That thereafter again a demand of increasing the fare was made by the petitioner and as committee was constituted by respondent no. 2 to consider the rise in fare. The aforesaid constituted committee held its meeting on 19.1.1996 and had given its report dated 29.1.1996 wherein it was concluded that if the petitioner company agrees to pay Rs. 8 Lacks as lease lease rent to respondent no. 2 then increase in fare to the tune of Rs. 20/- per passenger can be considered. It was further concluded that if there will be any increase in fare in future, there will be proportional increase in the lease rent also and for that the then chairman was given the powers to enter into an agreement with the petitioner company. (i) That the board in its meeting dated 7.2.1996 had passed the aforesaid committee and had thus resolved the matter accordingly. report of agreement supplementary (j) That pursuant to the resolution dated 7.2.1996, the then Chairman had entered into the alleged memorandum of understanding dated 12.12.1996 and thereafter into the alleged 16.1.1997. It is pertinent to mention here that no power was given to the then chairman to enter into an agreement in violation to the letter and spirit of the Principal Agreement. What has happened is that unilateral powers have been given to the petitioner to raise the fare and the same is totally against the public policy. There was no resolution to that effect and as such the alleged memorandum of understanding dated 12.12.1996 as well as the alleged 16.1.1997 were entered by the then chairman in excess of his powers and as such the same is illegal and force upon has no binding respondent no. 2 and further the same is also against the interest of the public at large. Thus the present Board in its extraordinary meeting dated 3.2.2004 had resolved to cancel the alleged 16.1.1997. The impugned letter is only a Supplementary Supplementary Agreement Agreement communication of Board(cid:146)s resolution dated 3.2.2004. It is worth mentioning here that it was well within the knowledge of the petitioner company that the board board(cid:146)s meeting is going to be held on 3.2.2004 and there is an agenda illegal Supplementary Agreement entered into by the then Chairman with the petitioner no. 1 company. cancellation

7. We have heard learned counsel for the parties and perused the entire evidence on record.

8. By the impugned order, the Executive officer, Nagar Palika Parishad, Hardwar has informed the petitioners that Supplementary Agreement entered between the petitioners and the then President Nagar Palika, Parishad has been cancelled in the public interest the Board vide its Resolution No.203 dated

03.02.2004.

9. The petitioners have not challenged cancellation of Supplementary Agreement vide Resolution No.203 dated 03.02.2004, as is evident from the prayers quoted above. The Resolution by which agreement dated

03.02.2004 was cancelled, has been passed accordance with provisions of U.P. Municipalities Act as applicable in State of Uttaranchal. The Resolution is in fact in the public interest which comes out from the fact that in the Principal Agreement, the increase was allowed only after the approval of the Board but in the Supplementary Agreement and by substitution, the clause (9) of the original agreement was amended and power was given to the petitioners unilaterally and they were free to increase the fare up to 25% without approval of the Board after every two years. While determining the fare of the Ropeway by which the visitors/devotees go to have a Darshan of Goddess Mansa Devi, it has to be considered that the visitors visiting to the temple are large in number and the Municipality being the local Government which also has the responsibility to watch and guard the interest of the visitors in regulating the increase in fare. This factor necessarily have to be taken into account otherwise 25% increase in fare after every two years by the petitioners will cause heavy financial burden on the visitors. It is settled law that the larger public interest should prevail over the individual(cid:146)s interest.

10. In the counter affidavit, it has specifically been stated that then Chairman and Executive Officer without any resolution of the Board authorized the petitioners to enter into such agreement dated 03.02.2004. By inserting such clause, a monopoly has been created in favour of the petitioners relating to increase in fare after every two years. It for these reasons the supplementary agreement dated 03.02.2004 has been cancelled by Resolution of Board.

11. The Minutes of the meeting is on record, a perusal of which does not show any resolution by which the President has been authorized to enter supplementary agreement with the petitioners.

12. By the impugned order, the Executive Officer has informed the petitioners regarding the cancellation of the supplementary affidavit and has required the petitioners to withdraw the order dated 16.01.2004 by which the 25% increase in the fare was made as after the cancellation of the supplementary agreement, as the petitioners did not have any power to increase the fare after cancellation of supplementary agreement. We may at the cost of the repetition reiterate that the Board(cid:146)s Resolution No.203 dated 03.02.2004 by which the supplementary affidavit has been cancelled is not under challenge.

13. Thus, the impugned order has rightly been issued by the Executive Officer and does not suffer from any illegality or infirmity.

14. In Writ Petition No.82 of 2004, the petitioner has challenged the notice/order dated 17.01.2004 (Annexure No.9) issued by the Executive Officer, Nagar Palika requiring the petitioners to withdraw the increase in fare of Ropeway.

15. The fare has been increased without approval of the Municipal Board as noticed in the Writ Petition No.108 of 2004 (M/B) (Supra). After cancellation of the supplementary agreement vide Resolution No.203 dated

03.02.2004, the Executive Officer, Nagar Palika was fully competent and justified in issuing the notice and hence the notice impugned cannot be said to be without jurisdiction.

16. In view of the above, both the writ petitions are devoid of merit and are dismissed accordingly. The petitioners shall give account to the Municipal Board about the fare charged by them without approval of the Municipal Board and the Municipal Board may take necessary steps for realizing the same.

17. Learned counsel for the petitioner at the last prayed for the leave to appeal before the Hon(cid:146)ble Supreme Court. We do not find any substantial question of law which has been decided by this judgment. The judgment is purely on facts, therefore, the leave to appeal is refused. (B.C. Kandpal, J.) (P.C. Verma, J.) Rajeev Dang