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2018 DIGILAW 8 (JK)

Zaffron Truck Union v. State Of J&K

2018-01-23

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. Zaffron Truck Union Khrew Pulwama, Kashmir, through its President Mohammad Amin Mir S/o Mohammad Akbar Mir R/o Khrew, Pulwama, has craved the indulgence of this Court in the grant of the following reliefs:- “Issue an appropriate writ, order or direction including the one quashing the instruction/order, if any issued by the Respondent No. 2 to the effect of directing the respondent No. 3 to transport the cement from their Unit to Leh and Kargil through respondent No. 4. “ “Issue an appropriate writ, order or direction including the one quashing the communication dated 14.07.2017 issued by the respondent No. 3. “ “Issue an appropriate writ, order or direction including the one directing the respondents to ensure that the cement is transported from the J&K Cements Ltd through Trucks of Petitioner Union to PWD Leh and Kargil without any interference.” “Issue an appropriate writ, order or direction including the one directing the respondents to ensure that the petitioner Union carries cement from the unit of respondent No. 3 in terms of arrangement made at the time of establishment of Cement Plant and also in terms of the settlement made from time to time with the respondent No. 3. “ “Issue an appropriate writ, order or direction including the one restraining the respondent No. 4 from transporting the cement from the Unit of respondent No. 3 to PWD Leh and Kargil. “ 2. The facts as these emerge from the petition of the petitioner-union are that Jammu and Kashmir Cements, set up a Cement Pant (1200 ton) at Khrew and in addition some private entrepreneurs have also set up as many as six Cement plants with a total capacity of 2000 ton per day in the vicinity of Jammu and Kashmir Cements Limited. The Cement Plants so set up are playing havoc to the environment and the eco-system of the belt and an area measuring 43650 Kanal has come either under the Cement Plants, or is adversely affected by the emissions of the cement plants. Resultantly, the entire agriculture land situate at village Khrew has altered its course. It has turned into a barren chunk of land depriving the entire population of village Khrew, comprising of more than 10,000 souls of their only source of livelihood. Resultantly, the entire agriculture land situate at village Khrew has altered its course. It has turned into a barren chunk of land depriving the entire population of village Khrew, comprising of more than 10,000 souls of their only source of livelihood. However, in order to compensate the affected people the Cement Plant owners including the J&K Cements Limited, encouraged the local population to purchase the trucks with the promise that the cement produced would be exclusively transported by these trucks so purchased so that the people of the area can fend for themselves. The land owners and the other residents of the village purchased more than 1200 trucks and all these trucks are operating under the Petitioner- Union and Al-Khudam Truck Union. The Petitioner's Union came to know that the respondent No. 2 has conducted a meeting in the first week of July 2017 wherein it has been decided that the cement will be transported from the J&K Cement Ltd, in the Trucks owned by the respondent No. 4, thereby depriving the petitioner union of their source of sustenance. The respondent No. 3 has issued a communication bearing dated 14.07.2017 wherein it has been stated that in the last Meeting held with the Divisional Commissioner, on 06.06.2017 it was decided and resolved that SRTC shall provide sufficient trucks for the carriage of cement to PWD Leh/Kargil. 3. The respondent No. 4 has resisted the petition of the petitioner-union on the grounds inter-alia that the power to regulate the transportation of cement or operation of vehicles etc, is permissible under law to be exercised by the respondents in compliance with the mandate of Section 67 of the Motor Vehicles Act. Therefore, the writ petition is liable to be dismissed on this score alone. The respondent No.4 has added that the impugned communication dated 14.07.2017 (Annexure-Q) has been issued in accordance with the mandate of SRO 157 of 2001 issued by the Government of J&K. In the premises the respondent No. 4 has prayed that the writ petition be dismissed. 4. Respondent No. 3 has pleaded in his objections that respondent Nos. 5 and 6 forwarded their requirement for the supply of cement to JK Cement Limited for the current year which was around two Lacs bags against which around fifty thousand bags were dispatched directly through the petitioner-union up to 12.06.2017 as per the request of the Superintendent Engineering Leh. Respondent No. 3 has pleaded in his objections that respondent Nos. 5 and 6 forwarded their requirement for the supply of cement to JK Cement Limited for the current year which was around two Lacs bags against which around fifty thousand bags were dispatched directly through the petitioner-union up to 12.06.2017 as per the request of the Superintendent Engineering Leh. In the meantime, a meeting was conducted by the respondent No. 2 in the first week of July, 2017, wherein it was decided that the cement will be transported to Leh/Kargil in the Trucks owned by respondent No. 4 i. e. the J&K State Road Transport Corporation Srinagar. It is further pleaded that the impugned communication dated 14.07.2017 was issued by the respondent Company to ensure timely supply of the cement to the various Departments of Leh/Kargil in view of the fact that the supplies to these areas are required to be made before September/October each year where after the road connectivity to these places gets interrupted due to the severe weather conditions. 5. Heard and considered. 6. Learned counsel for the petitioner-union has strenuously argued that the Deputy Commissioner, Pulwama addressed a communication to the respondent No. 3 vide No. DCP/PA/2222 dated 29.01.2005 (Annexure-F) wherein it is stated that the cement shall be transported through the Trucks owned by the villagers of Khrew i. e. the petitioner-union as promised at the time of the establishment of the JK Cement Limited at Khrew. He has further argued that in the year 2015 the official respondents made an effort to carry the cement from JK Cements Limited, through the trucks owned by the State Road Transport Corporation (SRTC) to different destinations. This move was resisted by the petitioner-union and as a sequel thereto it was resolved that the cement from the JK Cement Limited will be transported through petitioner-union, and a copy of the minutes of the meeting reflecting this intention is attached to the petition as (Annexure-F). It is also been pleaded that in the communication of the Deputy General Manager (Works) of Jammu and Kashmir Cements Ltd bearing No. KCW: GM's: 16(P&A): 2016/5415 dated 08.03.2016 (Annexure-J) it has been admitted that from the very inception, cement from the factory is being transported to Govt/semi-Govt and other private destinations through the recognized/registered truck Union viz M/S Zaffron Truck Union Khrew. It has been argued that in the year 2017 after the opening of the National Highway the Petitioner-union was asked to provide trucks for the carriage of cement from J&K Cement Limited to PWD stores located at Leh and Kargil, whereafter the petitioner Union provided the trucks to the Respondent No. 3 and the cement was being transported smoothly to Leh and Kargil. A fleet of more than 300 Trucks of the petitioner-union carried the Cement to Leh and Kargil. In the meantime a communication (Annexure-L) was addressed by the Petitioner-union to the respondent No. 3 to enhance the rates. This bears the No. ZTU-11011 dated 20.06.2017. The Petitioner-union came to know that the respondent No. 2 has conducted a meeting in the first week of July 2017 wherein it has been decided that the cement will be transported from the Unit of J&K Cements Ltd in the Trucks of the Respondent No. 4. The petitioner-union tried its best to obtain the copy of the order, if any issued, but the same has been kept as a guarded secret and no such order has been provided to the Union. 7. The petitioner-union immediately filed a representation to the Hon'ble Minister of R&B/PWD vide No. ZTU-1109 dated 07.07.2017, stating therein that it is the only the petitioner-union who has the right to transport the cement in their trucks and in this process the public money is also being saved from going down the drains as the petitioner-union is charging an amount of Rs. 35,500/- only for Leh per truck and Rs. 21,500/- to Kargil while as freight charges to be paid to the SRTC are calculated at Rs. 53,500/- for Leh and Rs. 33,600/- for Kargil. 8. Learned counsel for the petitioner-union has argued that in view of the above the case of the petitioner-union comes structurally within the definition of the doctrine of promissory estoppels enunciated under Section 115 of the Evidence Act. Learned counsel for the petitioner-union has stated that the communications and the minutes of the meetings cited above bind the government, committed to the rule of law and the government cannot come out of the wriggle of the doctrine of promissory estoppels. Learned counsel for the petitioner-union has stated that the communications and the minutes of the meetings cited above bind the government, committed to the rule of law and the government cannot come out of the wriggle of the doctrine of promissory estoppels. To carve out a case in his favour, the learned counsel for the petitioner has placed implicit reliance on the law laid down by the Apex Court of the Country in the cases of State of Punjab Vs Nestle India Ltd and Another, 2004 6 SCC 465 , M. Venkataramana Hebbar Vs. M. Rajagopal Hebbar and Others, 2007 6 SCC 401 and State of Bihar and Others Vs. Kalyanpur Cement Limited, 2010 3 SCC 274 . 9. Sro 157 dated 26th April, 2001 which is relevant in the determination of the issue raised herein before reads as under: “SRO 157 in exercise of the powers conferred by Sub-Clause (i) of clause (d) of Sub-Section (i) of Section 67 of the Motor Vehicles Act, 1988 (Central Act 50 of 1988), the Government of Jammu and Kashmir hereby direct that for para (a) of Notification SRO 344 dated: 10th December, 1988 read with Notification SRO 230 dated: 17th July, the following shall be substituted; newly. a. To bring the State Government department/Undertakings outside the purview of the State Transport Authority freight structure with the stipulation that a committee headed by the Managing Director JK State Road Transport Corporation shall fix freight rates on yearly basis in respect of their own fleet for carriage of goods destination-wise. All Government Departments/Undertakings shall utilize the services of truck fleet available with J&K State Road Transport Corporation in meeting their requirement of vehicles and shall invariably obtain no objection certificate from J&K State Road Transport Corporation before hiring of trucks from the open market. By order of the Government of Jammu and Kashmir. “ Sd/- (Mushtaq Ahmad) IAS Commissioner/Secretary to Govt. Information and Transport Deptt 10. By order of the Government of Jammu and Kashmir. “ Sd/- (Mushtaq Ahmad) IAS Commissioner/Secretary to Govt. Information and Transport Deptt 10. Government order No. 200-FCS &CA of 2016 dated 14.12.2016 which also assumes significance in the context of the decision of the instant petition is reproduced below word by word and letter by letter: “In supersession of all the previous orders on the subject, it is hereby ordered that the Department of Food, Civil Supplies and Consumer Affairs shall hire private vehicles on competitive basis from open market through eTendering for carriage of Food grains Sugar being handled by the Department, only after utilization of fleet of vehicles owned by the State Road Transport Corporation, J&K on L-I rates basis. The Director, Department of Food, Civil Supplies and Consumer Affairs, Jammu/Kashmir shall be the Nodal Officers for e-Tendering/finalization of the contract for their respective Divisions. This issues with the concurrence of the Finance Department conveyed vide order No. 21(2003)-C-622 dated 09.08.2016. By order of the Government of Jammu and Kashmir. Sd/- (Shafiq Ahmad Raina) IAS Secretary to the Government, Department of Food, Civil Supplies & Consumer Affairs. 11. Sro 157 issued by the Government in exercise of the powers vested under Section 67 of the Motor Vehicles Act incorporates the rule of law which is binding on the government Departments/Undertakings including the respondent No. 3. The communication bearing No. JKCL:M&S: SRTC: 2017/75 dated 14.07.2017 has been issued by the respondent No. 3 to the respondent-Corporation in compliance with the mandate of the aforesaid provision of law and it reads as under: Sub: Requirement of cement by PWD Leh/Kargil. Sir, District Superintendent Engineer PWD Kargil vide his letter No. 1439-45 dated 22.06.2017 requested for supply of 64400 bags of cement to its various divisions at Kargil from our ready stock immediately in view of limited working season at Kargil District. In addition to above about 90,000/- bags are required to be supplied to PWD Leh In context of above it is to intimate that during the last meeting with Divisional Commissioner held on 06.07.2017, it was decided that SRTC shall provide sufficient trucks for carriage of cement to PWD Leh/Kargil. But inspite of elapsing of more than nine days now, not a single truck from SRTC has reported at our Site which has resulted in deterioration of our semi finished cement product already kept I stock for Leh/Kargil. But inspite of elapsing of more than nine days now, not a single truck from SRTC has reported at our Site which has resulted in deterioration of our semi finished cement product already kept I stock for Leh/Kargil. Our clinker (semi finished cement product) gantry is full and in case the same is not lifted immediately there is every apprehension of its deterioration. In view of above you are requested to depute sufficient trucks to JKCL Khrew for lifting of cement to PWD Leh/Kargil immediately. Thanking you, Yours faithfully, Sd/- Managing Director, JKCL 12. Sro 157 makes it abundantly clear that all government Departments/undertakings shall utilize the services of the fleet of trucks owned by the JK State Road Transport Corporation in meeting the requirement of vehicles and shall invariably obtain “No Objection Certificate” (NOC) from J&K State Road Transport Corporation before hiring of trucks. The question that arises for consideration under the circumstances is whether there can be any estoppel against the law. The answer to this question is provided in the law laid down by the Apex Court of the Country in the case of Rajasthan State Industrial Development and Investment Corporation Vs Subhash Sindhi Cooperative Housing Society and Others, 2013 5 SCC 427 , Paras 23 and 32 of which are reproduced below verbatim: “23. Be that as it may, there can be no estoppel against the law or public policy. The State and statutory authorities are not bound by their previous erroneous understanding or interpretation of law. Statutory authorities or legislature cannot be asked to act in contravention of law. “The statutory body cannot be estopped from denying that it has entered into a contract which was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do. “Even an offer or concession made by the public authority can always be withdrawn in public interest. (Vide: State of Madras and Anr. Vs K. M. Rajagopalan, 1955 AIR(SC) 817; Badri Prasad and Ors. Vs Nagarmal and Ors. , 1959 AIR(SC) 559; and Dr. H. S. Rikhy etc. Vs The New Delhi Municipal Committee, 1962 AIR(SC) 554.” In Surajmull Nagoremull Vs Triton Insurance Co. (Vide: State of Madras and Anr. Vs K. M. Rajagopalan, 1955 AIR(SC) 817; Badri Prasad and Ors. Vs Nagarmal and Ors. , 1959 AIR(SC) 559; and Dr. H. S. Rikhy etc. Vs The New Delhi Municipal Committee, 1962 AIR(SC) 554.” In Surajmull Nagoremull Vs Triton Insurance Co. Ltd, 1925 AIR(PC) 83, it was held as under: “No court can enforce as valid, that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties or by a failure to plead or to argue the point at the outset” A similar view was reiterated by the Privy Council in Shiba Prasad Singh Vs Srish Chandra Nandi, 1949 AIR(PC) 297. Thus, in view of the above, we are of the considered opinion that the respondent-society is not entitled to take any advantage of those illegal circulars. “ “32. In the instant case, the government itself labeled the sale deeds, executed after issuance of Section 4 Notification as Void, we fail to understand as for what reasons the State authorities could think to regularize such orders. The right to administer, cannot obviously include the right to maladminister. Thus, we find no words to express anguish as what kind of governance it had been. (Vide: In Re: The kerala Education Bill, 1958 AIR(SC) 956; All Bihar Christian Schools Association and Anr. Vs State of Bihar and Ors. , 1988 AIR(SC) 305; Sindh Education Society and Anr. Vs. The Chief Secretary, Govt. of NCT of Delhi and Ors. , 2010 8 SCC 49 ; and State of Gujarat and Anr. Vs. Hon ble Mr. Justice R. A. Mehra (Retd) and Ors. , 2013 1 JT 276 .” 13. Again in the case of Collector, Distt. Gwalior and Another Versus Cine Exhibitors P. Ltd and Another, 2012 4 SCC 441 , the apex Court of the Country has at Para Nos. 10 and 22 of the judgment decided this issue in the following terms: “10. Justice R. A. Mehra (Retd) and Ors. , 2013 1 JT 276 .” 13. Again in the case of Collector, Distt. Gwalior and Another Versus Cine Exhibitors P. Ltd and Another, 2012 4 SCC 441 , the apex Court of the Country has at Para Nos. 10 and 22 of the judgment decided this issue in the following terms: “10. The seminal issue that emanates for consideration is whether the Division Bench is justified in stating in a sweeping manner that when the GDA had granted the lease of the land in auction within the knowledge of the State, the State is estopped from raising any such ground that the land had not been transferred to the GDA after lapse of thirty years. It is not disputed before us that the first respondent had not perfected its right, title and interest by way of adverse possession as it could not have been. Evidently, the High Court has proceeded on the basis of the doctrine of promissory estoppel. It is settled in law that the said doctrine is founded on the principles of equity and to avoid injustice. The said principle cannot be soundly embedded or treated to be sacrosanct when a public authority carries out a representation or a promise which is prohibited by law or is devoid of the authority of law. In Union of India and Others Vs. Godfrey Philips India Ltd. , 1986 AIR(SC) 806 a three Judge Bench of this Court has crystallized the principle thus: “..that there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. “ “22. Quite apart from the above, it is condign to note that in a case of the present nature, the common law doctrine of public policy can be invoked. The said doctrine becomes enforceable when an action affects or offends public interest or where injury to the public at large is manifest. “ “22. Quite apart from the above, it is condign to note that in a case of the present nature, the common law doctrine of public policy can be invoked. The said doctrine becomes enforceable when an action affects or offends public interest or where injury to the public at large is manifest. As is perceptible, the GDA could not have granted the lease of the property belonging to the State Government as it was Nazul land meant for the Public Works Department. The collective interest in the property could not have been jeopardized by usurpation of power/authority by the GDA. Such assumption of power by the GDA makes the whole action sans substratum and thereby a nullity. Needless to say, any grant has to have legal sanctity and legitimacy. “ 14. Applying the ratio of law laid down above to the facts of the instant case any promise which is not in tune and in line with the law cannot be declared to be binding. The rule of promissory estoppels cannot be invoked for the enforcement of a promise/declaration, which is against the law and made by the authorities who had no power and authority of the government to do so. The doctrine of promissory estoppels is based on the principles of equity and to avoid injustice. However, it cannot be treated to be a sacrosanct when a public authority (as stated herein above in this case) carries out a representation or a promise which is prohibited by law or is devoid of any authority of law. The state and the statutory authorities are not bound by an erroneous interpretation of law. The state cannot be asked to act against and in contravention of the law. Therefore, anything which runs contrary to the provisions of SRO 157 referred to herein before can neither be accepted nor entertained. The source of the communication dated 14.07.2017 is the said SRO and it shall hold the ground. 15. In view of the preceding analysis the writ petition does not merit any consideration. It entails dismissal and is accordingly dismissed.