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2017 DIGILAW 889 (GAU)

Vairabee Associates v. State of Assam

2017-07-11

SUMAN SHYAM

body2017
JUDGMENT AND ORDER (Oral) : 1. Heard Mr. S. Borthakur, learned counsel appearing for the petitioner in both the cases. Also heard Mr. Y. Doloi, learned Additional Advocate General, Assam, representing the respondents. Both these writ petitions arise out of common facts and hence, are being disposed of by this common order. 2. The Inland Water Transport Department, Assam, is responsible for operating three Ferry Services from Neamati to Majuli out of which Neamati-Kamalabari Ferry Service is one of them. On expiry of the existing lease for the year 2014-15 the respondent Inland Water Transport (I.W.T.) Department had floated a tender for settlement of the Neamati-Kamalabari Ferry Service by publishing the notice dated 13.12.2014 in the vernacular daily newspaper i.e. the Dainik Janambhumi. Since only two tenders were received in response to the notice dated 13.12.2014, hence, the tender process was called off by the department and the re-tender notice dated 25.02.2015 was issued. Pursuant to the notice dated 25.02.2015, an order of settlement dated 18.06.2015 was issued in favour of one Om Prakash Agarwalla. The said order of settlement dated 18.06.2015 was challenged before this Court in WP(C) No.3697/2015. Taking note of the fact that settlement granted in favour Om Prakash Agarwalla had been withdrawn by the department during the pendency of the proceeding, this Court had passed an order dated 04.09.2015 disposing of the writ petition with a direction to the departmental authorities to process the settlement by inviting fresh tender and complete the same within a period of two months. In terms of the order dated 04.09.2014, a fresh tender notice dated 25.09.2015 was issued by the authorities for settlement of the Neamati-Kamalabari Ferry Service but the said NIT was also challenged before this Court by filing WP(C) No.6302/2015 and WP(C) No.574/2016. By order dated 01.08.2016 this Court had disposed of both these writ petitions with a direction upon the department to publish a fresh tender notice for settlement of the Neamati-Kamalabari Ferry Service by bearing in mind the schedule of rate that was notified on 27.08.2010. In terms of the directions contained in the order dated 01.08.2016 the respondent No.5 had issued re-tender notice dated 29.09.2016 inviting bids for settlement of the Ferry Service but had later cancelled the said notice vide order dated 17.10.2016. In terms of the directions contained in the order dated 01.08.2016 the respondent No.5 had issued re-tender notice dated 29.09.2016 inviting bids for settlement of the Ferry Service but had later cancelled the said notice vide order dated 17.10.2016. Thereafter, again on 06.12.2016 a re-tender notice was issued for settlement of the Neamati-Kamalabari Ferry Service for the remaining period of the financial year 2016-17 fixing the value of the “Ghat” at Rs.1,32,35,000/-. 3. Responding to the NIT dated 06.12.2016 the petitioner, besides five other tenderers, had submitted their bids. On opening of the tenders, the rate quoted by the petitioner emerged as the highest offer. According to the petitioner, under the rules, the petitioner was entitled to an order of settlement on the basis of its offered rate but the authorities did not take any action for awarding the settlement in favour of the petitioner. 4. It is pertinent to mention here that earlier, one Kumud Das had challenged the NIT dated 06.12.2016 by filing WP(C) No.7738/2016 before this Court wherein an interim order dated 20.12.2016 was passed by this Court restraining the respondents from opening the tenders. It appears from the record that despite the interim order dated 20.12.2016, the respondents had opened the tenders apparently due to a communication gap. Subsequently, WP(C) No.7738/2016 was dismissed on withdrawal. After the dismissal of WP(C) No.7738/2016, the petitioner was expecting an order of settlement in its favour, but was surprised to know about the office order dated 25.01.2017 issued by the Commissioner & Secretary to the Government of Assam, Transport Department, communicating the decision of the Government to operate all the three Majuli based Ferry Services departmentally, under the direct superintendence of the District Magistrates of Majuli and Jorhat with immediate effect until a policy decision was in place for proper management and operation of Majuli based Ferry Services. The result of the Government order dated 25.01.2017 was that no order of settlement was issued in favour of the petitioner. Aggrieved thereby, the petitioner firm had approached this Court by filing WP(C) No.611/2017 assailing the order dated 25.01.2017 with a further prayer for directing the respondents to issue the order of settlement of the Ferry Service in favour of the petitioner. 5. During the pendency of WP(C) No.611/2017, the Inland Water Transport Department had started running the Neamati Kamalabari Ferry Service departmentally. 5. During the pendency of WP(C) No.611/2017, the Inland Water Transport Department had started running the Neamati Kamalabari Ferry Service departmentally. In order to further streamline the operation of the Ferry Services, the respondent No.5 i.e. the Executive Engineer, Inland Water Transport Division, Dibrugarh, Assam, had published the Expression of Interest (EoI) dated 10.02.2017 invited offers from reputed boat owners for operation of their Wooden Single Boats in the two Majuli based Ferry Services, viz., Neamati-Kamalabari and Cinnatoli-Bogoriguri-Neamati Ferry Services under the I.W.T. Division, Dibrugarh. Thereafter, the respondent No.5 had issued an office order dated 15.02.2017 cancelling the tender of Neamati-Kamalabari Ferry Service. Aggrieved by the EoI dated 10.02.2017 as well as the office order dated 10.02.2017 the petitioner had approached this Court by filing WP(C) No.1705/2017. 6. Mr. Borthakur, learned counsel for the petitioner, submits that the only reason why the tender was cancelled and a decision was taken to run the Ferry Service departmentally is to deprive the petitioner of the fruits of the tender process. Mr. Borthakur further submits that there was no justification for the departmental authorities to run the Ferry Services departmentally ignoring the high price offered by the petitioner merely on the basis of some frivolous complaints allegedly made by the public which were not even verified through a proper enquiry process. The learned counsel for the petitioner submits that even assuming that the departmental authorities were justified in operating the Ferry Services departmentally, yet, the Control and Management of Ferries Rules, 1968 (hereinafter ‘the Rules of 1968’) does not permit the Government to allow private boat operators to run the Ferry Services without floating any tender or public auction and to that extent the EoI issued by the department is in direct contravention of the provisions of the Rules of 1968. In support of his aforementioned arguments, Mr. Borthakur has relied upon a decision of the Calcutta High Court in the case of Narendra Prosad Singh vs. State of West Bengal and others reported in AIR 1957 Cal 98 to contend that if a public ferry is leased out it can only be done by way of public auction on such terms as the Magistrate, with the approval of the Commissioner, directs. Mr. Mr. Borthakur submits that since the Rules prescribe a procedure for leasing out ferry services, the departmental authorities could not have issued the EoI and resorted to the present procedure so as to subvert the scheme of the Rules. 7. Resisting the argument advanced on behalf of the petitioner, Mr. Y. Doloi, learned Additional Advocate General, Assam, has invited the attention of this Court to the communications dated 20.10.2016 issued from the Chief Minister'’ Secretariat and also the communication dated 24.01.2017 issued by the I.W.T. authorities to contend that taking note of public complaints received on regular basis regarding the exorbitant fares charged by the lessees of ferry services and also in view of the safety concerns involved in the matter, the Government had taken a policy decision to operate the three vital Ferry Services, viz., Neamati-Kamalabari Ferry Service, Aphala-Neamati Ferry Service and Cinatoli-Bogoriguri-Neamati Ferry Service departmentally. Since ferry service is the only available mode of transportation to Majuli Island, in order to streamline the transportation system for the benefit of the public, a decision was taken to allow private boat operators to operate Ferry Services on condition of payment of tolls to the Government and every boat owner who meets the requirements laid down in the EoI would get a licence to operate the Single Wooden Boat as per the Government decision. Mr. Doloi submits that the decision to operate the Ferry Services departmentally has been taken bearing the public interest in mind making an open offer to all boat owners and the said decision cannot be termed as arbitrary or discriminatory. Under the circumstances, Mr. Doloi has prayed for dismissal of the writ petitions with exemplary cost. 8. I have considered the submissions made by the learned counsel for the parties and have also examined the materials available on record. 9. From a perusal of the counter-affidavit filed by the department, it is apparent that the authorities had taken a decision in principle to operate the Ferry Services through the department and that is the reason why the process initiated on the basis of NIT dated 06.12.2016 was not taken to its logical conclusion. 9. From a perusal of the counter-affidavit filed by the department, it is apparent that the authorities had taken a decision in principle to operate the Ferry Services through the department and that is the reason why the process initiated on the basis of NIT dated 06.12.2016 was not taken to its logical conclusion. The mere fact that the tenders were opened and the petitioner had emerged as the highest bidder would not confer any indefeasible right upon the petitioner to get the settlement order and therefore, no right of the petitioner can be enforced in the present writ proceeding in so far as the NIT dated 06.12.2016 is concerned. Even after opening of the tenders the departmental authorities would be well within their jurisdiction and competence to abandon the tender process for good and sufficient reasons. As noted above, I find that there were valid reasons for the departmental authorities to take a decision of operating the Ferry Services departmentally and the said decision cannot be termed as arbitrary and illegal in the facts and circumstances of the case. It is also to be noted herein that the period for which the NIT dated 06.12.2016 was issued had also come to an end on 31.03.2017. 10. Coming to the second limb of challenge made by the petitioner to the EoI dated 10.02.2017, I find that the respondent No.5 had issued the same inviting response from reputed boat owners of the area who are interested to operate their wooden boats as Ferry Service on condition of payment of toll to the Government. From a minute scrutiny of the terms and conditions contained in the EoI it is apparent that find no settlement of the ferry service has been awarded in favour of any private party through the aforementioned EoI but the same is merely an arrangement made by the department to further streamline and strengthen the transportation system to the Majuli Island by enforcing stringent safety norms. It is also not in dispute that the I.W.T. department is still operating the Neamati-Kamalabari Ferry Service through the departmental vessels. 11. As per Section 4(b) of the Northern India Ferries Act, 1878, the local Government would be authorised to take possession of private ferry and declare it to be public ferry. It is also not in dispute that the I.W.T. department is still operating the Neamati-Kamalabari Ferry Service through the departmental vessels. 11. As per Section 4(b) of the Northern India Ferries Act, 1878, the local Government would be authorised to take possession of private ferry and declare it to be public ferry. Rule 4(1) of the Rules of 1968 also permits the Government to manage ferries which could not be settled either by public auction or by calling for tenders, with the approval of the Government. In view of the above provisions contains in the Rules, it cannot be said that the EoI published on 10.02.2017 is contrary to the provisions of law. 12. It is no doubt true that in matters of public auction the departmental authorities would be required to follow a fair and transparent process. But, as has been mentioned above, the present is not a case where the respondent authorities had acted with any degree of unfairness or in a discriminatory manner while deciding to operate the Ferry Services departmentally. The petitioner has also failed to substantiate the allegations of malafide brought against the authorities. 13. For the reasons stated hereinabove, I am of the view that both the writ petitions are devoid of any merit and the same are accordingly dismissed. However, having regard to the facts and circumstances of the case, the parties to bear their own costs.