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
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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
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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
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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
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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
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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
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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
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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
9Municipal 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 theshops 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 ofunderstanding (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
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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 orabstinence, 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
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(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. Aproposal, 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 theoffer 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.
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24. 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 tobe 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 timeafter 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
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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 byconsideration. 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 definiteacceptance 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
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enforceable by law is a contract under Section 2(h) of the
Contract Act.
.
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
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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
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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
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of respondent No. 1, after deduction of actual expenses within
the aforesaid time.
.
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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