Gorkhaland Territorial Administration vs The State of West Bengal

Jayanta Kumar Biswas, J.—The appellant in the AST filed on September 19, 2014 is aggrieved by a single Judge order dated September 15, 2014 in its WP No. 24412(W) of 2014 refusing interim relief and vacating an interim order dated September 9, 2014.

The single Judge order dated September 9, 2014 is quoted below:-

"To enable Counsel for the State respondents to take instruction in the matter, matter to appear in the list on 15th September, 2014.

The NIT was issued in July, 2014 and the tender opening date was 25th July, 2014, it is not known whether any step has been taken to either open the tender or to issue the work order.

Accordingly, let no step be taken till 16th September, 2014.

Certified copy of this order, if applied for, be given to the parties as early as possible."

The single Judge order dated September 15, 2014 is quoted below:-

"A representation has been filed by the petitioner on 21st July, 2014 and a dispute raised. No receipt of such representation has been annexed to the writ petition and all that is contended by Counsel for the petitioner that by facsimile the said representation has been despatched. Such evidence is not borne out by the representation annexed. Though the work order was issued on 31st July, 2014 whereas e-auction was initiated on 21st July, 2014. Offers were to be made by 25th July, 2014. As the work order has already been issued and the writ petition filed only in August, 2014, this application for the present does not merit an interim order.

Directions are given for filing affidavits.

Affidavit in opposition be filed within one week after long vacation; reply, if any, be filed a week thereafter.

Matter to appear in the list three weeks after long vacation.

Decision taken by the respondent authorities will abide by the result of this writ petition.

Interim order granted on 9th September, 2014 stands vacated.

Certified copy of this order, if applied for, be given to the parties on priority basis."

The North Bengal Development Department is a part of the Home and Hill Affairs Department of the Government of West Bengal. By notices all dated July 21, 2014 the North Bengal Development Department put repair work of three roads out to tender.

The case of the appellant is that in view of the provisions of ss. 26 and 32 of the Gorkhaland Territorial Administration Act, 2011 the North Bengal Development Department of the Home and Hill Affairs Department of the Government of West Bengal could not put the work out to tender. Its further case is that its Chief Executive wrote a letter dated July 21, 2014 to the Home and Hill Affairs Department requesting its Additional Chief Secretary to ask the North Bengal Development Department to cancel the tender notices.

Alleging that in spite of its representation dated July 21, 2014 the Home and Hill Affairs Department chose not to take any step for cancelling the notices whereby the North Bengal Development Department had unauthorisedly put the repair work of the roads in question, vested in it, out to tender, the appellant moved the WP.

The single Judge passed the order dated September 9, 2014 after hearing advocates for the State who, however, were not in a position to inform the single Judge whether the work orders had been issued. The single Judge restrained the respondents from taking any step till September 16, 2014.

The WP was taken up for interim relief hearing again on September 15, 2014. Referring to the absence of reliable evidence in proof of submission of the representation dated July 21, 2014 and the fact that the work orders had been issued on July 31, 2014, the single Judge ordered that any decision taken by the respondents would abide by the outcome of the WP.

Mr. Sen appearing for the State has submitted that since the single Judge has given directions for affidavits and the WP final hearing, the respondents do not think it is necessary to file any Affidavit-in-Opposition to the CAN. Under the circumstances, both Mr. Kar appearing for the appellant and Mr. Sen have made submissions for final disposal of the appeal itself.

Mr. Kar has submitted as follows:-

The roads whose repair work has been put out to tender by the North Bengal Development Department were and are among the properties vested in the Gorkhaland Territorial Administration. The provisions of s. 26 of the Act specifically empower and entitle the Gorkhaland Territorial Administration to exercise all administrative, financial and executive powers related to Public Works Department. The July 21, 2014 representation was actually sent; only evidence in proof of the fact of sending was not produced with the WP. On the facts, the appellant was entitled to a restraining order interim relief.

Mr. Sen has submitted as follows:-

The Government of West Bengal Home Department issued a notification dated July 8, 2011. Certain amendments in the West Bengal Rules of Business made by the Governor in exercise of power conferred by Article 166(3) of the Constitution of India were published under the notification. One of the amendments was that in the First Schedule to the rules under the heading "Department" after item LVII and the entry relating thereto item LVIII and entry "North Bengal Development Department" were inserted. In Part I(4) under the entry "North Bengal Development Department" all matters connected with infrastructural facilities through improvement of rural communication were allocated to the department. The notification was a piece of law that was in force on March 12, 2012 when Gorkhaland Territorial Administration Act, 2011 came into force. In view of the provisions ss. 26, 71, 72 and 73 of the Act and the notification, the North Bengal Development Department, a part of the Home and Hill Affairs Department of the Government of West Bengal, was competent to put the road repair work in question out to tender. In any case, there are two important aspects for which the appellant was not entitled to any interim relief in the WP:-(i) there are reasons to say that the person affirming the affidavit in support of the WP was not authorised to affirm the affidavit; and (ii) the work orders had been issued as back as July 31, 2014.

The relevant parts of s. 26 of the Act are quoted below:-

"26. Subject to the provisions of this Act and any other law for the time being in force and any general or special direction of the Government, the Gorkhaland Territorial Administration shall have administrative, financial and executive powers in the region in relation to-

............ ............ ..........

(xxii) Public Works Department including work relating to State Highways as well as the responsibility discharged by the State Government for maintenance of National Highways within the jurisdiction of Gorkhaland Territorial Administration."

The relevant parts of s. 32 of the Act are quoted below:-

"32. Subject to such restrictions or conditions as the Government may think fit to impose, all properties specified below and situated in the region shall vest in and belong to the Gorkhaland Territorial Administration with all other properties which may become vested in the Gorkhaland Territorial Administration and shall be under the direction, management and control of the Gorkhaland Territorial Administration and shall be held and applied by it for the purposes of this Act, namely:-

...... ............... ............... .............

(b) all public roads which have been constructed or maintained out of the Fund and stones and other materials thereof and also trees, erections, materials, implements and things provided for such roads."

A copy of the WP has been produced with the CAN (for stay). The affidavit affirmed by the person reveals that he stated that he had been authorised to affirm the affidavit, and that he was competent to affirm it. Until his competency to affirm the affidavit is properly challenged and steps are taken in justification of the challenge, the court is to proceed on the basis that the facts stated in the affidavit are true.

Hence in our prima facie opinion, there is no merit in the contention that the person affirming the affidavit in support of the WP was not competent to affirm the affidavit.

We are unable to accept that in view of the provisions of s. 40(1)(c) of the Act, only the Chief Executive of the Gorkhaland Territorial Administration, a body corporate (s.4), was competent to represent the appellant. Section 4 clearly provided that the Gorkhaland Territorial Administration would sue and be sued in its corporate name. The WP has been filed by the Gorkhaland Territorial Administration in its corporate name.

The principal issue in the WP was whether the North Bengal Development Department, a part of the Home and Hill Affairs Department of the Government of West Bengal, was competent to put the road repair work in question out to tender. The question of interim relief was to be considered by the single Judge examining the prima facie merits of the issue.

It is evident from the single Judge orders dated September 9, 2014 and September 15, 2014 that the issue was not examined at all. The representation aspect was only an incidental aspect. If the appellant was entitled to an interim relief, having regard to the strength of its case on the merits of the principal issue, the question whether the delay in approaching the court should disentitle it to interim relief would have been relevant.

The Act is a piece of legislation that came into force during the operation of the notification dated July 8, 2011. By operation of the provisions of s. 32 the roads whose repair work has been put out to tender by a department of the State Government stood vested in the Gorkhaland Territorial Administration. There is nothing in the notification dated July 8, 2011 that may lead to a prima facie opinion that the vesting was a restricted or conditional one.

In view of s. 26(xxxii) of the Act, the Gorkhaland Territorial Administration is entitled to exercise all administrative, financial and executive powers in relation to the repair work of the roads in question. It is, however, entitled to exercise the powers subject to any law for the time being in force.

The case of the respondents is that in view of the provisions of the notification dated July 8, 2011 allocating, inter alia, all matters connected with infrastructural facilities through improvement of rural communication to the Minister in charge of the North Bengal Development Department, nothing in s. 26 of the Act empowered or entitled the Gorkhaland Territorial Administration to exercise any administrative, financial and executive power in relation to the repair work of the roads in question.

In our prima facie opinion, the case of the respondents is not based on a sound and acceptable interpretation of the provisions of the notification dated July 8, 2011 and s. 26 of the Act. We are of the prima facie opinion that in view of the provisions s. 26, nothing in the notification dated July 8, 2011 could empower or entitle the North Bengal Development Department to put the road repair work in question out to tender.

Statement was made in the WP that the representation was actually sent. The respondents did not file any affidavit disputing the correctness of the statement made on oath. Hence the single Judge was supposed to accept the statement at face value for the purpose of interim relief.

And the fact that the work orders had been issued on July 31, 2014, having regard to the nature of the principal issue arising from the WP case, was not sufficient to refuse interim relief; for the fait accompli principle cannot apply, if that amounts to allowing an act to continue to defeat the provisions of any statute.

For these reasons, we allow the AST and dispose of the CAN ordering as follows. The single Judge order dated September 15, 2014 is modified ordering that till the disposal of the WP the respondents shall not take any step whatsoever for execution of the road repair work for which the tender notices were issued. The respondents are restrained from taking any step whatsoever in connection with the tender notices. No costs. Certified xerox.