Deipormi Dkhar vs State Of Meghalaya And Ors

Mohammad Rafiq, CJ

Writ petition No.304 of 2019 filed by Shri Deipormi Dkhar seeks to assail the order dated 07.08.2019 terminating the renewal lease agreement dated 09.01.2018 whereby he was permitted to operate the weighbridge at Ratacherra, East Jaintia Hills District, Meghalaya for three years w.e.f. 09.01.2018, on annual license fees of Rs. 1,80,000,00/- payable in three installments i.e. on the 7th day of the month and sharing of 50% weighment fees. The petitioner has also challenged the order dated 07.08.2019 shifting the weighbridge from the present location belonging to the land of private respondent No.9 with the prayer that same be declared illegal and unconstitutional. A further prayer has been made to direct the respondent-State to restore the existing weighbridge to the petitioner for a period of three years under the existing renewal lease agreement dated 09.01.2018 read with the Meghalaya Installation, Regulation, Maintenance and Operation of Weighbridge Rules, 2009 [for short "the Rules of 2009"] excluding the time utilized by the State respondents w.e.f. 25.05.2018 to 13.07.2019.

Writ Petition No.334 of 2019 is an off-shoot of the Writ Petition No. 304 of 2019, which too has been filed under Article 226 of the Constitution of India by the same petitioner, challenging the Notice Inviting Tender [NIT] dated 13.08.2019 published in local newspaper, namely, Mawphor on 19.08.2019, notifying the same weighbridge for being given on lease, with a prayer that it may be declared illegal, unconstitutional and quashed.

Since the outcome of the second writ petition [WP (C) No.334 of 2019] is dependent on decision of the first writ petition [WP (C) No.304 of 2019], we shall treat the first writ petition as the lead case for deciding both the writ petitions.

Background facts leading to the present litigation are that the respondent-State had taken a policy decision on 02.06.2010 to establish the integrated check gates in the State of Meghalaya and decided to discontinue the existing weighbridges. Such decision of the State was quashed and set aside by the Shillong Bench of the Gauhati High Court while deciding a bunch of writ petitions vide common judgment and order dated 20.04.2011. Later on, pursuant to the order dated 09.06.2014 passed by the National Green Tribunal [NGT], a Committee constituted by the NGT framed the guidelines dated 01.09.2014, wherein, eleven exit points were identified for the purpose of regulation and weighment of coal laden trucks exiting towards Assam and Bangladesh from the State of Meghalaya. Special Leave to Appeal filed against the judgment of the Gauhati High Court dated 07.06.2011 was dismissed by the Supreme Court vide order dated 06.11.2015, however, with the observations that till the requisite number of integrated check-posts are set up as per the existing policy of the State, the existing weighbridges, whether private or Government, shall not be discontinued and the Chief Secretary of the State shall decide as to how many integrated check-posts are required. The NGT vide order dated 25.03.2015 directed the respondent-State to operationalize twelve weighbridges including Ratacherra. On the application filed by the State of Meghalaya, the NGT vide order dated 02.12.2014 allowed shifting of exit point identified at Umkiang to Ratacherra, East Jaintia Hills District. After completion of the tendering process, the petitioner being a successful bidder, was awarded the contract. A lease agreement dated 23.01.2015 was executed between the petitioner (lessee) with the respondent-Transport Department (lessor) to run the Ratacherra weighbridge for a period of one year.

The respondent-State vide order dated 03.01.2017 approved for renewal of the lease agreement with the petitioner. Accordingly, the renewable lease agreement dated 09.01.2017 was executed for a period of another one year. On expiry of the period of the renewable lease agreement dated 09.01.2017, the existing renewable lease agreement dated 09.01.2018 was executed by the Transport Department in favour of the petitioner for a period of three years with the annual premium of Rs. 1,80,000,000/- (Rupees one crore eight lakhs) per year with 50% sharing of weighment fees. When the petitioner fell in default of payment of one installment amounting to Rs. 60 lakhs and 50% sharing of weighment fees, the respondent-State issued a Demand Notice dated 16.04.2018 to the petitioner calling upon him to clear the dues on or before 30.04.2018, with the stipulation that upon his failure to do so, the weighbridge will be taken over by the department. According to the petitioner, he wrote letter dated 31.05.2018 to the Commissioner of Transport, Government of Meghalaya, Shillong, stating that he was facing great hardship due to personal family problems, therefore, he was unable to pay the outstanding installments. He therefore requested to grant him time to pay the installments/dues amounting to Rs. 60 lakhs and also requested for issuing him a treasury challan for payment. Since the petitioner failed to clear the dues within time, the respondent-State vide order dated 14.05.2018 decided to take over the Ratacherra weighbridge temporarily on the ground of default of first installment. Accordingly, the respondent-State department took over the said weighbridge on 25.05.2018 and started running the same on its own.

The petitioner then filed a writ petition, being WP (C) No.323 of 2018, before this Court for direction to restore/handover the weighbridge to him and gave an undertaking to clear 50% pending dues i.e. Rs. 37,92,975/- to the State Government. This Court after hearing the learned counsel for the parties vide order dated 03.06.2019, observed that temporarily taking over and running of the weighbridge by the respondent-State, without terminating the renewal lease agreement, despite default of payment of dues, is highly illegal. The matter was adjourned on the request of learned Additional Advocate General appearing for the State respondents, who wanted to seek instructions. On the next date of hearing i.e. on 18.06.2019, this Court granted further three weeks" time to learned Additional Advocate General as a last chance to seek instructions in terms of the order dated 03.06.2019. When the matter was listed on 05.07.2019, learned Additional Advocate General informed the Court that the respondent-State had decided to handover the above weighbridge to the petitioner on or before 15.07.2019 and then steps shall be taken to issue fresh NIT. Pursuant to the order of this Court dated 05.07.2019, the respondent No.3-Commissioner of Transport vide letter dated 11.07.2019 asked the petitioner to remain present personally or through a representative, to accept the handing/taking over of the weighbridge on 13.07.2019 at 11:00 AM and actually handed over the weighbridge on that day.

According to the petitioner, the Commissioner of Transport was required to run the weighbridge as per the terms and conditions of the existing renewal lease agreement dated 09.01.2018. After restoration/handing over the weighbridge to the petitioner, he has been running the weighbridge through his Manager with the enforcement inspectors/staff deputed by the respondent-State and issuing weighment challan of the Transport Department to the goods/minerals laden trucks plying therein and collected weighment fees as prescribed by the renewal lease agreement. The petitioner was however shocked to learn that the officials of the Transport Department were negotiating with one Shri Phransis Swer (respondent No.9) to shift the existing weighbridge from the site of petitioner to unrecognized and non existing weighbridge constructed by the respondent No.9. The respondent No.9 vide letter dated 12.07.2019 had expressed his willingness to accept the offer of the respondent-State to run the weighbridge for a period of six months. The Commissioner of Transport, Government of Meghalaya directed the Deputy Commissioner, East Jaintia Hills District to examine and make an assessment on the said proposal of shifting so as to close down the existing weighbridge run by the petitioner.

On the statement of learned Additional Advocate General in the Court on 13.07.2019 that the weighbridge has already been handed over to the petitioner, this Court vide order dated 24.07.2019 dismissed WP (C) No.232 of 2018 filed by the petitioner as the same had been rendered infructuous, with liberty to the Department to take steps for recovery of 50% due of weighment fees. The Commissioner of Transport Department served a show cause notice on the petitioner at around 4:30 PM on 16.07.2019 stating that he had illegally resorted to operation of weighbridge without, any authority or permission from the Transport Department on 13 th, 14th and 15th July 2019 and thereby illegally collected fees and fines from the public through weighment of goods laden vehicles, which amounts to cheating and misappropriation of public money. Therefore, the petitioner was required to show cause as to why FIR should not be registered against him for such offenses.

The petitioner again filed writ petition being WP (C) No.265 of 2019 challenging the letter dated 04.07.2019 issued by the Commissioner of Transport Department whereby it was decided that the Commissioner of Transport intends to float tender for setting up of integrated weighbridge under the Meghalaya Weighbridge Policy, 2018 and the writ petition was disposed of by permitting the petitioner to file a comprehensive representation. The petitioner then filed review petition seeking review of that order, which was disposed of on 22.07.2019 with the clarification that in para 4 of the order dated 22.07.2019 in place of "for cancellation of the agreement which was renewed on 09.01.2018" it be read as "for floating of tender for setting up of integrated weighbridge under the Meghalaya Weighbridge Policy, 2018". The petitioner thereafter submitted a detailed representation on 02.08.2019 to the respondent No.3-Commissioner of Transport with a prayer to drop the proceedings arising from the show cause notice dated 16.07.2019, letters dated 04.07.2019 and 15.07.2019 and for allowing him to pay all the pending dues. The respondent No.3, however, passed the order dated 07.08.2019 terminating the renewal lease agreement dated 09.01.2018 on the ground that the petitioner failed to comply for payment of pending dues. The respondent-Department on 07.08.2019 itself issued an order of shifting the enforcement officers from the weighbridge of the petitioner to the new weighbridge of the respondent No.9 with a direction that all the good laden truck plying to and from Assam shall be weighed on the new weighbridge.

Mr. HL Shangreiso, learned counsel for the petitioner has argued that harmonious reading of renewal lease agreement, especially its Clause 10, stipulated that non-payment or deliberate delay in payment of the lease amount will render the contract/lease null and void and it shall be open for the Government to take civil and criminal action to recover the amount from the lessee. The word "or" appearing between non-payment and deliberate delay ought to be read as "and", which indicates that the contract will be rendered null and void only if delay is deliberate. In support of his arguments, learned counsel has relied on the judgments of the Supreme Court in the case of R.S. Nayak v. A.R. Antulay: (1984) 2 SCC 183 and M. Satyanarayana v. State of Karnataka & anr: (1986) 2 SCC 512. It is submitted that conjoint reading of Clause 1 and Clause 10 of the lease agreement dated 09.01.2018, indicates that the Commissioner of Transport is required to first ascertain or decide as to whether the default of payment or non-operation of weighbridge as per rules, is deliberate or not. The first installment was paid after a delay of only three days which fell due on 28.05.2018.Non-payment of 50% of weightment fees i.e. Rs. 37,95,975/- for the period 21.01.2018 to 15.04.2018, was occasioned as there was no weighment of coal laden trucks owing to the ban imposed by NGT as well as by the Supreme Court vide order dated 28.03.2018. Such non-deposit thus cannot be said to be deliberate.

It is argued that neither the Rules of 2009 nor renewal lease agreement expressly exclude adherence to the principle of natural justice, therefore, termination of lease agreement vide order dated 07.08.2019, without opportunity of hearing to the petitioner is bad in law. Learned counsel for the petitioner argued that mere default of payment does not lead to automatic termination of the contract or lease and that being so, the cause for the respondents to take any action arose on 28.05.2019. Yet the respondent-State chose not to exercise the said right. It rather took over the running of the weighbridge on 25.05.2018. Thereafter, the respondent-State compromised the matter with the petitioner on 31.03.2019 and restored the weighbridge in his favour vide order dated 11.07.2019 and rather allowed him to run the weighbridge w.e.f. 13.07.2019 by deputing its enforcement inspectors/staff. All these steps clearly indicate that the respondent-State has waived its legal right and the principle of waiver, acquiescence as well as estoppels comes in the way of the respondent-State. Therefore, the impugned order dated 07.08.2019 is liable to be set aside. In support of his arguments, learned counsel has relied on the judgment of the Supreme Court in the case of Shish Ram & ors v. State of Haryana & ors: (2000) 6 SCC 84.

Learned counsel for the petitioner further argued that the respondent-State cannot be permitted to take advantage of its own wrong by terminating the lease agreement that the annual lease amount of Rs. 1,80,00,000/- was as per Clause 6 of the agreement payable in three installments after every four months on the seventh day or the following day, if the seventh day falls on a holiday. But Clause 9 did not prescribe the period/time for payment of 50% of weighment fees. Clause 11 clearly indicated that the contract will stand terminated if the annual settled amount or monthly collection of weighment fees was not paid within three weeks from the date the due falls. The first installment and monthly weighment fees had fallen due on 07.05.2018. Action on that basis could be taken only on 28.05.2018. It was because the Demand Notice issued on 16.04.2018 giving 14 days to pay the aforesaid dues was in fact premature. The respondent-State without any authority took control of the weighbridge on 25.05.2018 and operated the same on their own for more than one year, without paying either fees/damages/compensation to the petitioner rather restored the weighbridge back to him on 13.07.2019 by deputing its officers to run and collect the weighment fees.

Learned counsel argued that the renewal lease agreement dated 09.01.2018 was executed for three years and therefore would remain operative till 08.01.2021. The respondent-State never indicated the restoration or handing over of the land and machine. It actually restored/handed over the contract i.e. running of the weighbridge and accordingly informed this Court on 05.07.2019. The show cause notice dated 16.07.2019 is only an afterthought. Therefore the impugned order dated 07.08.2019 is liable to be set aside. It is argued that the weighbridge of the respondent No.9 is not a recognized weighbridge as per the orders dated 06.06.2014 and 02.12.2014 passed by NGT. This weighbridge is not an existing weighbridge as per the order dated 06.11.2015 passed by the Supreme Court. Therefore, shifting of the existing weighbridge run by the petitioner so as to recognize the non-existing weighbridge belonging to the private respondent is highly illegal.

Learned counsel submitted that liberty granted by this Court on 24.07.2019 is required to be read with the principles of reasonableness and fairness. Such liberty is not absolute or unguided. The same is required to be exercised by the respondent-State keeping in view the nature of the case. Issuance of Demand Notice dated 16.04.2018 despite taking over operation of the weighbridge by the State for more than one year, without any authority under the contract, is wholly illegal and arbitrary. The payment of Rs. 60 lakhs has already been made on 31.05.2019. Delay in payment of 50% sharing of weighment fees was occasioned due to ban imposed by the Supreme Court. Lastly, learned counsel argued that the petitioner is even now ready to pay the outstanding due of Rs. 37,92,975/- as 50% sharing of weighment fees to the respondents-State w.e.f. 20.01.2018 to 24.05.2018 as and when the respondent-State agree to accept the same.

Per contra Mr. B Bhattacharjee, learned Additional Advocate General submitted that the renewal lease agreement dated 09.01.2018 is basically a contract and the disputes arising out of the terms of such contract or alleged breach of the terms thereof, have to be settled only by ordinary principles of law of contract. The terms and conditions incorporated in the said lease agreement are the terms and conditions mutually agreed upon by the parties thereto and do not raise any issue of public law. The dispute relating to interpretation of any of the terms and conditions of such a contract cannot be the subject matter of writ petition under Article 226 of the Constitution of India. It is argued that the contract between the respondent-State and the petitioner purely falls under the realm of private law. The question of any public law based on Article 14 of the Constitution does not arise for decision in the present case. The present writ petition is essentially a dispute of payment of dues in terms of the lease agreement dated 09.01.2018 and therefore cannot be entertained by a writ court.

Learned Additional Advocate General further argued that prior to filing of the present writ petition, the petitioner had earlier filed a writ petition being WP (C) No.323 of 2018 challenging the order dated 24.05.2018 by which the weighbridge of the petitioner was taken over by the State respondents. In the said writ petition [WP(C) No.323 of 2018], the petitioner also prayed for restoration/handing over of the weighbridge to him and restoration of the lease agreement dated 09.01.2018. The matter was deferred to enable the parties to discuss/compromise on several dates and when no compromise was arrived at, it was heard on merits. This Court after hearing the matter was of the opinion that since the weighbridge of the petitioner was a private weighbridge, the same could not have been taken over by the State respondents. This Court observed that the default in payment in terms of the lease agreement dated 09.01.2018 by the petitioner could have resulted in termination/cancellation of the lease agreement by the State respondents without taking over the weighbridge. Faced with this situation, the State respondents returned the weighbridge back to the petitioner on 13.07.2019, without restoring/reviving the right of the petitioner to operate the same. An affidavit to that effect was filed before this Court on 23.07.2019 in para 6 of which it was specifically mentioned that although the weighbridge has been returned back to the petitioner, the petitioner has not been authorized to operate the said weighbridge. It was proposed to float an open tender with regard to setting up of a weighbridge at Ratacherra as a part of the Meghalaya State Policy for Weighbridges, 2018.

Learned Additional Advocate General further argued that the petitioner thereafter resorted to illegal operation of the weighbridge without seeking any permission.A show cause notice dated 16.07.2019 was issued to him in this regard. Consequent to the filing of the said affidavit dated 23.07.2019 in WP (C) No.323 of 2018, the writ petition was disposed of by this Court vide order dated 24.07.2019 as infructuous with liberty to the State respondents to take any other action against the petitioner, apart from recovery of the dues in terms of the lease agreement dated 09.01.2018. It was also argued that this Court while disposing of WP (C) No.323 of 2018 did not interfere with the Demand Notice dated 16.04.2018 and subsequent order of taking over dated 24.05.2018. No specific direction was also passed by this Court for allowing the petitioner to run the weighbridge by reviving the lease agreement dated 09.01.2018. The petitioner having not challenged the order dated 24.07.2019 passed in WP (C) No.323 of 2018 could not have filed this present writ petition seeking revival of the lease agreement dated 09.01.2018. As per the terms and conditions incorporated in the lease agreement dated 09.01.2018, more particularly Clause 1, the lease agreement is required to be revalidated on yearly basis. Full payment of annual fees and 50% share of the total weighment fees, as such, does not confer absolute right on the petitioner to claim continuance of the same for three years. Clause 6 of the lease agreement stipulated that the licensee (petitioner) shall pay a sum of Rs. 1,80,00,000/- in three monthly installments of Rs. 60,00,000/- each on the 7th day of every month in which it is due or the following day, if the 7th day happens to be a holiday. This term would mean that since the agreement is executed in the month January 2018, the first installment would fall due by the 7th April 2018, second on 7th August 2018 and third on 7th December of 2018. The petitioner was required to pay the first installment on or before 7th April 2018 but he failed to do so. Upon failure on the part of the petitioner to make necessary payment, a Demand Notice dated 16.04.2018 was issued requiring him to pay the first installment of Rs. 60,00,000/- and 50% of the total weighment fees w.e.f. 21.01.2018 up to 14.04.2018, within 30.04.2018, otherwise, weighbridge would be taken over by the Department. The petitioner after receiving the said Demand Notice narrated personal family problems as the reason for non-payment of the dues.

Learned Additional Advocate General submitted that the petitioner has admitted commission of breach of the contract by him.In that view of the matter, he has no genuine grievance to raise before this Court by invoking public law remedy under Article 226 of the Constitution. It is submitted that Clause 11 of the lease agreement dated 09.01.2018 stipulates that 50% of the weighment fees is required to be paid monthly by the petitioner within three weeks from the date it falls due failing which the contract would stand terminated forthwith. The petitioner has not paid any amount towards weightment fees till date and that the due date for first installment of the lease amount was well known to the petitioner. Therefore, he cannot claim for revival of the lease agreement before this Court. Even in the writ petition, being WP (C) No.323 of 2018, the petitioner did not challenge the mode and manner of payment demanded by the State Government. The orders dated 09.06.2014 and 02.12.2014 passed by the NGT with regard to the weighbridge is basically location/place centric and not individual for particular weighbridge. The orders passed by the NGT did not confer any right or entitlement on any individual or particular weighbridge, it rather directed for ensuring proper weighment of vehicle on the highways by placing the weighbridge at appropriate location/place in that check gate. The Ratachhera weighbridge was identified as per the order dated 02.12.2014 on the exit point for the location of State owned weighbridge due to its proximately with the border of the State.

Learned Additional Advocate General argued that recognition of the weighbridge of the respondent No.9 was a temporary stop-gap arrangement is not illegal and does not violate the orders of any authority. As the weighment of vehicles on the highway is mandatory requirement, the State respondents cannot turn a blind eye on the subject after discontinuation of service of the operation of the weighbridge of the petitioner. The orders dated 07.08.2019 are formal follow up orders pursuant to discontinuation of the utilization of the weighbridge of the petitioner by the State respondents in view of the order passed in WP (C) No.323 of 2018. The weighbridge of the petitioner was taken over by the State respondents on 25.05.2018 and subsequently returned back to him on 13.07.2019. The communications dated 04.07.2019 and 11.07.2019 unambiguously project that the demand of the petitioner during those periods were confined to the payment of rent only for utilization of the weighbridge by the State respondents and not for enforcement of any rights arising out of the lease agreement. Any fresh cause of action for filing this petition did not accrue to the petitioner seeking revival/restoration of the lease agreement dated 01.09.2018 to carry on with the operation of the weighbridge. Learned Additional Advocate General in support of his argument has relied on the following judgments:-

(i) Premji Bhai Parmar & ors v. Delhi Development Authority & ors: (1980) 2 SCC 129;

(ii) Divisional Forest Officer v. Bishwanath Tea Co. Ltd.: (1981) 3 SCC 238;

(iii) Life Insurance Corporation of India v. Escorts Ltd. & ors: (1986) 1 SCC 264;

(iv) Bareilly Development Authority & anr v. Ajai Pal Singh & ors: (1989) 2 SCC 116;

(v) State of Bihar & ors v. Jain Plastics and ChemicalsLtd.: (2002) 1 SCC 216;

(vi) W.P. No.2732 of 2010 & M.P. No.1 of 2010 decided on 11.02.2011 in S. Usha v. General Manager & ors;

vii) Joshi Technologies International INC. v. Union of India & ors: (2015) 7 SCC 728 and;

(viii) Municipal Council Neemuch v. Mahadeo Real Estate & ors: 2019 SCC online SC 1215.

We have given our anxious consideration to the rival submissions and perused the material placed on record.

The writ petition [WP (C) No.323 of 2018] filed by the petitioner against the action of the respondent-State in taking over the weighbridge was disposed of on 24.07.2019 with the following order:-

"(1) The petitioner has invoked the writ jurisdiction under Article 226 of the Constitution of India seeking writ in the nature of certiorari for quashing the order issued on 24.05.2018 by the Commissioner of Transport, Meghalaya, Shillong temporarily taking over the weighbridge at Ratacherra, East Jaintia Hills District, Meghalaya from the petitioner on account of non-payment of the lease amount for first installment in terms of the renewal lease agreement dated 09.01.2018. (2) Learned counsel for the parties are not at variance that during the pendency of the writ petition, the petitioner had deposited the first installment of Rs. 60,00,000/- (Rupees sixty lakhs) on 01.06.2018 though according to the learned Additional Advocate General there had been a delay in depositing the first installment which was payable on or before 07.04.2018. It was stated by learned Additional Advocate General that the weighbridge has been handed over to the petitioner on 13.07.2019 and urged that in view thereof, the writ petition has been rendered infructuous. Learned counsel for the petitioner did not dispute the same. (3) Accordingly, the writ petition is disposed of as infructuous. (4) Learned Additional Advocate General prayed that liberty be granted to the State to recover the amount due from the petitioner as the petitioner has failed to deposit 50% of the weighment fees which is payable by the petitioner. A prayer was also made that liberty be granted to the State to take action for recovery of the said amount or any other action against the petitioner for violating the terms of the renewal lease agreement dated 09.01.2018. It is, however, observed that disposal of the writ petition shall not be taken as a bar for the respondent-State to recover the legitimate amount payable in terms of the renewal lease agreement dated 09.01.2018 or to take any action against the petitioner for violation of the terms thereof in accordance with law."

After handing over the weighbridge situated on the private land of the petitioner, the respondent-State issued a show cause notice to him on 16.07.2019 that he has illegally started to operate the weighbridge and that the only commitment before the Court was restoration of the weighbridge (land and machinery) at Ratacherra and not for granting permission to operate the weighbridge. Yet the petitioner illegally operated the weighbridge by collecting fees and fines from the public through weighment of goods laden vehicles which amounts to cheating and misappropriation of public money. Therefore, the petitioner was required to show cause within seven days as to why FIR should not be registered for the offenses committed by him. Since the respondent No.9 agreed to run the Ratacherra weighbridge for a temporary period with maximum term of six months vide his letter dated 11.07.2019. The Commissioner of Transport forwarded his (respondent No.9) offer to use the weighbridge in order to avoid loss of revenue due to exigency situation on the condition that the management and operation of the said weighbridge would be entirely entrusted upon the Transport Department officials and the rent shall be accessed by the District Collector, Khliehriat and Executive Engineer, PWD (Building), Khliehriat.

However, the petitioner filed a fresh writ petition being WP (C) No.265 of 2019 assailing the communication dated 04.07.2019 issued by the Commissioner of Transport whereby the Commissioner of Transport was decided to float the fresh tender for setting up of integrated weighbridge under the Meghalaya Weighbridge Policy, 2018. This Court without expressing any opinion on the merits of the controversy, vide order dated 22.07.2019 disposed of the writ petition with liberty to the petitioner to file a comprehensive representation by raising all the pleas as sought to be raised in the writ petition and also directed the Commissioner of Transport to decide the same after affording an opportunity of hearing to the petitioner and by passing a speaking order in accordance with law. Subsequently, vide order dated 29.07.2019 disposed of the review petition filed by the petitioner by clarifying that the petitioner shall file a comprehensive representation against the action of the respondent-State for floating of tender for setting up of integrated weighbridge under the Meghalaya Weighbridge Policy, 2018. The petitioner submitted a detailed representation on 02.08.2019.

The respondent-State vide order dated 07.08.2019 which is impugned in the present writ petition terminated the lease agreement with immediate effect by invoking the relevant clause of the renewal lease agreement in view of the failure of the petitioner to clear the dues by 09.01.2018. It by a separate letter dated 07.08.2019 directed the District Transport Officer, East Jaintia Hills, Khliehriat to immediately shift the enforcement staff from Ratacherra weighbridge of the petitioner to the new weighbridge of respondent No.9 and to ensure that goods laden truck plying to and from Assam should be weighed in the new weighbridge monitored and operated by the Transport personnel.

Argument of learned counsel for the petitioner that Clause 10 of the lease agreement dated 09.01.2018 provides that non-payment or deliberate delay in payment of the lease amount/due amount would form the basis for termination of the agreement and until it is shown that delay in payment was deliberate on the part of the petitioner, the agreement cannot be terminated, is noted to be rejected for the stated reasons. In order to appreciate the strength of this argument, we deem it appropriate to reproduce Clause 10 of the lease agreement dated 09.01.2018 as under:-

"10. Non-payment or deliberate delay in payment of the lease amount will render the contract/lease null and void. The Government will be opened to take such civil and criminal action to recover the amount from the lease."

A bare reading of the afore quoted Clause 10 of the lease agreement would make it clear that not only non-payment but also deliberate delay on the part of the lessee (petitioner) for payment of the lease amount would render the contract/lease null and void and the Government would be entitled to take such civil and criminal action to recover the amount from the lessee. In order to overcome the difficulty posed by above, learned counsel argued that the word "or" in Clause 10 should be read as "and" and not "or". It should be read conjoining two phraseologies namely "non-payment" and "deliberate delay". In other words, what is sought to be canvassed is that non-payment of the dues by the lessee to the lessor for invoking Clause 10 to terminate the lease is deliberate and only in that event the lease would be terminated.

Reliance placed by the learned counsel for the petitioner in this behalf on the judgment of the Supreme Court in the case of R.S. Nayak (supra) is wholly misconceived. The Supreme Court in that case considered Clause (12) (a) of Section 21 IPC pertaining to defence that every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government shall be public servant. The Special Judge whose order was under scrutiny before the Supreme Court in that case held that these three independent categories are provided in Clause (12) (a) and if a person falls in any of them, he would be a public servant. It was in that context their Lordships held that use of the expression "or" appeared to be a disjunctive as contended on behalf of the respondent. Their Lordships further observed that depending upon the context "or" may be read as "and" but the Court would not do it unless it is so obliged because "or" does not generally mean "and" and "and" does not generally mean "or". Another judgment relied upon by the learned counsel for the petitioner to support his arguments in the case of M. Satyanarayana (supra). The Supreme Court in that case observed that the word "and" used in Rule 4, Note (iii) of the Karnataka Medical Colleges (Selection of Candidates for Admission) Rules, 1984 the expression of the word "and" in Clause (a) cannot be read disjunctively or independently. Both the judgments would therefore make it clear that the context in which the expression "and" and "or" would be the deciding factor as would be evident from the following except in para 5 of the aforesaid judgment "a statue cannot be construed merely with reference to grammar. Statute whenever the language permits must be construed reasonably and rationally to give effect to the intention and purpose of the legislature."

We do not want to multiply the decisions on this issue. It is, however, trite that the word "and" and "or", whenever used in a statue or sub-ordinate legislation or terms of the agreement, would take its colour from the context in which they are used in the setting of the statute. In fact the Supreme Court in the aforementioned judgment in the case of R.S. Nayak (supra) while relying on the judgment of Davis & Sons Ltd. v. Atkins: 1977 Imperial Court Report 662 observed that an interpretation which is contrary to all canons of construction and leads to an absurd end product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rogue"s charter.

Even though Clause 1 of the agreement provides that the license shall remain valid for three years as per the provision of Rule 7 of the Meghalaya Installation Regulation, Maintenance and Operation of Weighbridge Rules, 2009 and 2015 but it will be subjected to revalidation on a yearly basis as to the full payment of annual fees and 50% share of the total weighment fee which shall be examined by the Commissioner of Transport at the expiry of one year. Clause 1 of the lease agreement dated 09.01.2018 reads as under:-

"1. This license shall remain valid for 3(three) years which is in accordance with provision of Rule 7 of the Meghalaya Installation Regulation, Maintenance and Operation of Weighbridge Rules 2009 and 2015 but will be subjected to revalidation on a yearly basis as to the full payment of annual fees and 50% share of the total weighment fee which shall be examined by the Commissioner of Transport at the expiry of 1(one) year. In the event of any default of payment by the Licensee of Government dues or of operation of the weighbridge as per Rules provided thereon this Agreement shall be terminated forth with by the Commissioner of Transport, Shillong and informed to the Transport Department."

Coming to another argument advanced on behalf of the petitioner that since the respondent-State restored to taking over possession of the weighbridge of the petitioner vide order dated 11.07.2019 and restored the possession of the same back on 13.07.2019 which according to the petitioner was a result of compromise with the petitioner, the respondent-State has waived all their legal rights and the principle of waiver, acquiescence as well as estoppels shall apply against the respondent-State. Even this argument does not have any substance. When the earlier writ petition was filed, this Court observed that since the weighbridge was located in the private land of the petitioner, the respondent-State could not take over the possession of the same. It was in this context that the respondent-State vide order dated 11.07.2019 restored the possession of the weighbridge to the petitioner and at the same time observing with regard to his demand of rent of the weighbridge used by the Transport Department. Obviously, this was restricted to only restoration/possession of the weighbridge on which it was located but the respondent-State never agreed to grant permission to the petitioner to again starts operating the weighbridge. In fact, the respondent-State neither waived their legal right and the principle of waiver, acquiescence in the act of the petitioner of operating the weighbridge on 13th, 14th and 15th July 2019 as it is evident from the showcause notice dated 16.07.2019 issued by the Commissioner of Transport that the petitioner has collected fees and fines illegally from the public through weighment of goods laden vehicles which amounting to cheating and misappropriation of public money, therefore, he was called upon to show cause within seven days as to why FIR should not be registered for the offences committed by him. Therefore, the action in temporarily awarding the work of weighment fees of goods laden vehicles for a maximum term of six months in favour of the respondent No.9 cannot be faulted.

The Commissioner of Transport vide letter dated 04.07.2019 categorically observed that the demand of the petitioner was found to be on a higher side, which needs to be re-assessed by the Deputy Commissioner (Revenue), East Jaintia Hills and Executive Engineer, PWD (Building), Khliehriat. We are satisfied that the respondent State acted only in the course of invoking the relevant clause of the contract agreement and to terminate the agreement on the fault of the petitioner to pay the amount dues and 50% sharing of weighment fees. Initially the dispute was about delay in payment of one installment but at the same time the petitioner was found to be in default of weighment fees.

Therefore, as regard the argument that the petitioner is entitled for compensation that the weighbridge was operated by the Transport Department for a period of one year, it must be observed herein that the dispute arising between the parties is a contractual dispute involving disputed question of law. As to at what rate the petitioner should be compensated by payment of rent for the land and the building, is again a question of fact. However, since the respondent-State in their letter dated 04.07.2019 required the Deputy Commissioner (Revenue), East Jaintia Hills to re-assess the rent of the building and who in turn asked the Executive Engineer, PWD (Building), Khliehriat to do so. The Commissioner of Transport in his letter dated 04.07.2019 conveyed that the rent demanded by the petitioner was on the higher side which was required to be reassessed by the Deputy Commissioner (Revenue), East Jaintia Hills.Considering that the respondent-State has agreed to pay therent on the land of the petitioner, we partly allow writ petition [WP (C) No.304 of 2019] only to the extent of directing the respondent-State, if not already assessed and paid, assess and pay the user charge to the petitioner with regard to the use of land and building during which the Transport Department operated the weighbridge, within three months. In case the petitioner remains dissatisfied with the quantum of rent paid to him, it shall be open for him to avail remedy before the competent court of civil jurisdiction for recovery of rent and damages.

As regard the second writ petition [WP (C) No.334 of 2019] challenging the fresh NIT dated 13.08.2019, issuance of fresh NIT was occasioned by termination of the lease agreement dated 09.01.2018 of the petitioner on account of his failure to pay the due installment and 50% share of weighment fees within the stipulated time and since we have found no fault in the action of the respondent-State terminating the renewal lease agreement, the respondent-State is fully justified to float a fresh tender for inviting bids so that the weighbridge shall not remain idle and not to realize any weighment fees.

In view of the above, while this Writ Petition No.304 of 2019 is partly allowed to the limited extent as indicated in para 32 supra, the Writ Petition No.334 of 2019 is dismissed.

There shall be no order as to costs.