1. Heard.
2. Respondent No. 4 has filed counter to the petition.
3. The petitioner and respondents No. 1 to 3 have filed reply to I.A No. 5.
4. Heard on I.A No. 5 filed by respondent No. 4 for recalling/modification of the order dated 09.10.2014
5. Vide order dated (9.10.2014 following order relating to respondent No. 4 has been passed;-
“In view of the factum of recovery of toll tax from the public at large, as an interim measure, it will be appropriate to direct respondent No. 4 to file an undertaking within two weeks from today to ensure the proper repair of road to the satisfaction of respondents No. 1 to 3 and also to file further undertaking that in case of failure, they will deposit the toll tax so recovered from the public at large for repair of road, with respondet it No. 1”
6. Learned counsel for the respondent No. 4 submits that this is contractual matter between the respondent No. 4 and the respondents No. 1 to 3. There is arbitration clause and proceeding before the Arbitrator is pending where stay has already been obtained by other respondents. He further submits that as per agreement in case the respondent No. 4 failed to repair the road, the respondent No. 1 is under obligation to repair the road, may be at the cost of the respondent No. 4. Therefore, the respondent No. 1 is not debarred from the repair of road or making the road upto the mark to save the petitioner and public at large from inconvenience, but instead of taking such steps the respondents No. 1 to 3 are also supporting case of the petitioner without there being any material. Respondent No. 4 tried its level best and is trying its level best to comply terms of the agreement but the respondents No. 1 to 3 have failed to comply with their part of agreement. Even they have not provided site in time for construction of road. Therefore, the order in question is required to be recalled/modified. He further submits that the respondent No. 4 is still repairing the road and will continue to repair the road.
7. Learned Senior Counsel for the petitioner vehemently opposed the application (I.A No. 5) and submitted that there may be contractual agreement between the respondents No. 1 to 3 and respondent No. 4 but this is public road and the respondents are under obligation to keep the road in proper condition. In the light of aforesaid facts, order dated 9.10.2014 was passed which is required to be complied by the respondent No. 4.
8. Learned counsel for the respondents No. 1 & 3 and respondent No. 2 jointly submit that respondent No. 4 has not carried out the repairs work but collecting toll tax. They further submit that respondent No. 4 will collect toll tax till March, 2015 and thereafter it would not be possible for them and the petitioner to take any action against the respondent No. 4.
9. After hearing the parties in detail, order dated 09.10.2014 was passed whereby the respondent No. 4 was not directed to deposit the money or was nor refrained from collecting toll tax or utilizing the money, but instead of complying the order, the respondent No. 4 has tried to flee from the justice by filing this modification application (I.A No. 5).
10. Consequently, I.A No. 5 is liable to be dismissed and hereby dismissed with a cost of Rs. 50,000/- (Rupees Fifty Thousand) payable to the C.G High Court Legal Services Committee within 30 days from today. Respondent No. 4 shall comply the order dated 09.10.2014 within two weeks from today. Respondent No. 4 is further directed to deposit the entire toll tax amount collected in daily basis in some nationalized bank from today and is refrained from withdrawing the same until further orders.
11. List the matter on 22.12.2014.
12. Certified copy today itself.