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2023 DIGILAW 552 (UTT)

Jaswant Singh v. State of Uttarakhand

2023-09-25

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : Vipin Sanghi, J. We have heard learned counsels and proceed to dispose of this writ petition. 2. The petitioner has preferred the present writ petition to seek the following reliefs:- “(i) Issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned tender notice no.6130/Jalasaya/ 2021-22 Dehradun dated 18th November 2021 (Annexure-1) along with corrigendum dated 02nd December 2021 (Annexure-2) issued by the respondent no.2 i.e. Secretary Uttarakhand State Matasaya Palak Vikas Abhikaran Dehradun. (ii) Issue a writ, order or direction in the nature of mandamus, directing and commanding the respondent fisheries board to the effect that it shall issue fresh tender notice in respect to Baur & Haripura Reservoir situated in District Udham Singh Nagar for awarding fishing contract for next 05 years only in accordance with the Uttarakhand State Water Management, Fisheries and Angling Rules 2013” 3. The case of the petitioner is that respondent no.2 issued the impugned tender Notice No. 6130/Jalasaya/ 2021- 22 Dehradun dated 18th November 2021, to which a corrigendum was issued on 02nd December 2021. The said tender invited bid from the interested bidders for providing fishing rights at Baur & Haripura Reservoir in District Udham Singh Nagar. The tenure of the contract was stated to be for ten years, i.e. from 2021-22 to 2030-31. The tabulation contained in the tender, which, inter alia, described the period of tender reads as follows:- Ø0 Tkyk'k; dk uke Tkuin@e.My Bsds dh vof/k vkjf{kr /kujkf'k c;kus dh /kujkf'k vkWuykbZu fufonk tek djus dh vfUre frfFk 1- Cksj ,oa gfjiqjk tyk'k; m/keflag uxj@dqek;w¡ e.My o"kZ 2021&22 ls o"kZ 2030&31 rd nl o"kZ #0 36-08 yk[k #0 3-608 yk[k fnukad% 6-12-2021 le;% lk;a 05 cts 2- 96 dsat #0 36-00 yk[k #0 3-60 yk[k ;ksx #0 72-08 yk[k # 7-028 yk[k 4. The petitioner was aggrieved by the said tender on the ground that the tenure of the contract under the tender, which was stated to be ten years, was contrary to the rules framed by the State Government under the Uttarakhand Fisheries Act, 2003. The said Act, in Section 3(1), empowers the State Government to make the Rules for the purposes mentioned in the said Act. In pursuance of Section 3(1) of the Act, the State Government has framed the Uttarakhand Fisheries Rules, 2013, on 25.10.2013. The said Act, in Section 3(1), empowers the State Government to make the Rules for the purposes mentioned in the said Act. In pursuance of Section 3(1) of the Act, the State Government has framed the Uttarakhand Fisheries Rules, 2013, on 25.10.2013. Rule 11 of the said Rules, inter alia, reads as follows:- ^^11- eSnkuh {ks= dh ufn;ksa ds Bsdksa dh vof/k ik¡p o"kZ gksxh vkSj bldh x.kuk vkxkeh 1 tqykbZ ls 30 twu rd dh vof/k dks lfEefyr dj dh tk;sxhA ÁFke o"kZ esa ;g vof/k Lohd`fr dh rkjh[k ls ÁkjEHk ,oa 30 twu dks lekIr le>h tk;sxhA Lohd`r fufonk ewY; esa Áfro"kZ 10 Áfr'kr dh o`f) vkxf.kr dh tk;sxh vkSj rnuqlkj fufonknkrk }kjk lans; gksxhA** (emphasis supplied) 5. In the same Rules, Appendix 6(1) again reiterates the same position in the following words:- Ø0 Tky{ks= dk uke vuqKkfor f'kdkjekgh fof/k ijfeV@ykbZls oS/krk vof/k chV vkoaVu dh fof/k fufonk ek/;e ls fu"ks) vof/k f'kdkjekgh ds fuf"k) {ks= dk LFkku 1 2 3 4 5 6 7 9- eSnkuh {ks= dh ufn;ka leLr ekU; f'kdkjekgh fof/k;k¡ ik¡p o"kZ [kqyh uhykeh ds vk/kkj ij 01 tqykbZ ls 30 flrEcj rd eRL; esyk vk[ksV ij iw.kZ ÁfrcU/k jgsxkA 1- dqaHk esyk {ks= ,oa vU; /kkfeZd LFkyksa ds vkl&ikl 2- fpfUgr Átuu {ks= 6. Upon issuance of notices, respondent no.1 and respondent nos.2 to 4 have filed their counter-affidavits. The stand taken by the State in their counter-affidavit is that, the State had issued a Government Order on 18.11.2021- which also happens to be a date on which the tender, in question, was issued, thereby fixing the tenure of government contracts for fishing rights as ten years. Clause 25 of the Government Order dated 18.11.2021 reads as follows:- ^^25- Bsds dh vof/k nl ¼10½ o"kZ gksxh tcfd ÁFker% Bsdsnkj ds lkFk ik¡p ¼05½ o"kksZa gsrq vuqca/k fu"ikfnr fd;k tk;sxk vFkkZr vuqca/k dh vof/k 05 o"kZ gksxhA ;fn Bsdsnkj@ lfefr }kjk leh{kk ls iwoZ ;k leh{kk ds ckn e/;kof/k esa Bsdk NksM+ fn;k tkrk gS rks vfHkdj.k dks gq;h foRrh; gkWfu ds lkis{k Bsdsnkj }kjk tek /kjksgj /kujkf'k dks C;kt lfgr tCr dj fy;k tk,xk vkSj Bsdsnkj ds fo#) vo'ks"k /kujkf'k dk lek;kstu mldh cSad xkj.Vh ls fd;k tk,xkA** (emphasis supplied) 7. We have inquired from learned counsel appearing for the State, as to how the said Government Order could have been issued in the teeth of Rule 11(1) of the 2013 Rules, framed by the State Government, under Section 3(1) of the Fisheries Act, aforesaid. There is no answer forthcoming. 8. Pertinently, the Government Order dated 18.11.2021 does not purport to be an amendment to the Fisheries Rules, 2013, since the said Government Order does not even purport to have been issued in exercise of the rule making power of the State. The Fisheries Act, 2003 clearly sets out the procedure prescribed for the purpose of framing of Rules under Section 3(1). Section 3(2) states that the State Government may, by notification in the official gazette, apply the Rules. The Government Order dated 18.11.2021 is not claimed to have been gazetted. Moreover, Section 3(5) provides that every rule made under the Act shall be laid, as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of not less than fourteen days which may be comprise in one session or in two or more successive sessions. It is, therefore, clear that the Government Order dated 18.11.2021, relied upon by the respondents to justify the issuance of tender for a period of ten years, is contrary to the existing Uttarakhand Fisheries Rules, 2013, and in particular, contrary to Rule 11(1) thereof. The said Government Order, being in the nature of executive instructions, cannot override the statutory rules. Consequently, neither the Government Order dated 18.11.2021 can be sustained, nor the action taken thereunder while issuing the tender, in question. 9. We find the action taken by the respondent- State, even otherwise, to be completely mindless, for the reason that the same does not appear to be financially prudent on the part of the State. It is not the stand of the respondent State, that the contractor, who is granted the fishing rights, has to make a substantial capital investment at the beginning of the contract, and therefore, the period of the contract needs to be increased to enable the successful contract to recovery its capital expenditure. It is not the stand of the respondent State, that the contractor, who is granted the fishing rights, has to make a substantial capital investment at the beginning of the contract, and therefore, the period of the contract needs to be increased to enable the successful contract to recovery its capital expenditure. Grant of contracts for such long periods of time as ten years, is bound to result in loss of revenue for the State in the long run, since the inflation would not be factored in when contracts are awarded for such large periods of time. 10. We may also take note of the order dated 05.01.2022, passed by this Court, wherein the Court had observed as follows:- “Having regard to the facts & circumstances of the case, it shall be open to the respondents to award contract to the highest bidder, however, extension of contract beyond 5 years shall be subject to final outcome of the writ petition. As prayed, four weeks’ time is granted to learned counsel for the respondent(s) for filing counter affidavit(s). Two weeks’ time, thereafter, is allowed for filing rejoinder affidavit. List this matter in the month of March, 2022”. 11. We, therefore, quash the tender and the corrigendum in question. The contract awarded to respondent no.5 shall, accordingly, stand terminated. It shall be open to respondent no.5 to claim the refund of the excess amount from the State that respondent no.5 claims to have deposited for the unexpired period. The respondent- State shall initiate a fresh tender in accordance with the existing Fisheries Rules, 2013 without any delay. 12. The writ petition stands disposed of in the aforesaid terms. 13. Pending application, if any, also stands disposed of.