Nishant Papne & Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Special Appeal Nos. 201 and 203 of 2019 are preferred against the common order passed by the learned Single Judge in WPMS No.3716 and 3721 of 2018 dated 08.03.2019. Special Appeal Nos.202 and 205 of 2019 are preferred against the order passed by the learned Single Judge in WPMS No.3719 and 3720 of 2018 dated 11.03.2019.

All the appellants herein are tour operators who participated in the bidding process for operating Canter Buses in Dhikala Zone of Corbett Tiger Reserve for a six year period from 2018-19 to 2023-24. In terms of the Tiger conservation plan, as approved under Section 38-B of the Wild Life Protection Act, not more than four canter buses are permitted to ply with Dhikala Zone of Corbett Tiger Reserve each day consisting of two trips, one in morning and the other in the afternoon. All the appellants herein participated in the earlier tender process, pursuant to the tender notice dated 11.11.2018, and were found to be the lowest bidders. They were called upon to procure canter buses before being granted work orders. Even before work orders could be issued, the tender notice dated 11.11.2018 was cancelled by proceedings dated 07.12.2018; and a fresh tender notice was issued.

In the orders under appeal, the learned Single Judge, while taking note of the fact that the petitioner may have been the lowest bidders, opined that it did not create any right in their favour which obligated the respondents to enter into an agreement with them; clause 38 of the Tender Notice provided that it would be exclusively within the domain of the decision making process of the Director of the Corbett Tiger Reserve to cancel the tendering process without giving prior notice or reasons; since the tender process was cancelled before crystallization of any right which accrued to the petitioner on a contract being entered into, the petitioners could not complain of infringement of any fundamentally enforceable rights of theirs; cancellation of the tender could not be said to be either arbitrary or in violation of any of the terms of the Tender Notice; and, on the other hand, the cancellation order was passed in the exercise of the power reserved with the Director, Corbett Tiger Reserve. The writ petition was, accordingly, dismissed. Aggrieved thereby, the present Appeals.

Mr. Dushyant Mainali, learned counsel for the appellant-writ petitioner, would submit that, contrary to the Tiger Conservation Plan in terms of which only four Canter Buses can be operated in the Dhikala Zone of Corbett Tiger Reserve each day, the fresh tender issued by the respondents on 07.08.2019, during the pendency of these appeals, invites bids for ten Canter Buses; having made the appellants-writ petitioners alter their position, on their being directed to procure Canter Buses, it was not open to the respondents to cancel the tender process to their detriment; the order of cancellation of the tender does not assign any reasons; reasons have been furnished, for the first time, in the counter affidavit; while power is reserved with the Director, Corbett Tiger Reserve to cancel the tender, the said tender was cancelled not by the Director, but by the Deputy Divisional Forest Officer; and the order of cancellation of the tender is without jurisdiction.

In his affidavit dated 27.03.2019, filed in the Special Appeal, the Director, Corbett Tiger Reserve has stated that point no. 17 of the guidelines dated 02.12.2013 enables a Park Warden or the person nominated by the Director, Corbett Tiger Reserve, who should not be below the rank of Assistant Conservator of Forests, to issue an advertisement, receive application forms, thereafter take action on the same as per rules, and issue a final list of registration of vehicles; cancellation of the tender, for registration of vehicles, was by the Sub-Divisional Officer who is also the in-charge Park Warden, and who was duly authorized by the Chief Wild Life Warden, Uttarakhand, Dehradun; the entire exercise was undertaken by the Sub-Divisional Officer/Park Warden and, consequently, the tender process was also cancelled by him; at that time the Director was in Port Blair undergoing a training course on "illegal trade in wildlife and role of wildlife forensics in dealing with wildlife crime"; the training was being conducted by the Government of India from 03.12.2018 to 07.12.2018, whereas the order of cancellation of the tender was passed on 07.12.2018; as per the Tiger Conservation Plan, for Corbett Tiger Reserve, only 08 Canters capacity is fixed to ply in Dhikala Zone per day i.e. four in the morning shift and four in the evening shift; that does not relate to the number of vehicles to be registered; it is always open to the respondents to increase or decrease registration of vehicles in terms of condition No.34 of the Tender Notice; during the tourist season, from 15th November to 15th June, canter rides are available for tourists on all seven days in a week; the term of the present agreement expired in June, 2019; keeping in view the aforesaid situation, the number of vehicles/canters to be registered have been increased from 04 to 07; while the number of registered gypsies in Corbett Tiger Reserve is presently 259, between 180-200 Gypsies ply per day; the tender was cancelled because some other contractors had quoted their rates lesser for full day, than that of the rate of contractors who charged more for half a day; the department did not accept the Canters/vehicles for full day; therefore the contractors, who had quoted their rates lesser for a full day, also started claiming that their rates be adjusted for half a day; and, in this situation, the department took a decision to cancel the tender.

In so far as the petitioner's contention, regarding the Sub-Divisional Forest Officer not being authorized to cancel the tender is concerned, it is evident, from the counter affidavit, that, in terms of the guidelines governing award of tender, the Park Warden is entitled not only issue the tender, but also to cancel the tender. While the petitioner contends that the guidelines make no mention of Canter Buses, and relate only to Light Motor Vehicles, it is unnecessary for us to dwell on this aspect any further, since cancellation of tender was on 07.12.2018, when the Director, Corbett Tiger Reserve (who is admittedly competent to cancel the tender), was undergoing training at Port Blair in Andman and Nicobar on 07.12.2018; and he has expressed no reservation regarding cancellation of the tender by the Sub-Divisional Forest Officer.

The contention, that no reasons are assigned in the order of cancellation, is only to be noted to be rejected. Unlike public orders, public made in the exercise of statutory power, it is unnecessary for administrative orders, including orders cancelling tenders, to contain reasons therein. It is always open to the concerned authorities, when called upon to do so by the Court, to state the reasons which weighed with them, in cancelling the tenders, in the counter affidavit filed by them. As noted hereinabove, the reasons for cancellation of the tenders have been furnished in the affidavit filed by the Director, Corbett Tiger Reserve, the contents of which have been noted earlier in this order. As we are satisfied that the reasons for cancellation are valid, this contention also necessitates rejection.

With regards the complaint that bids have been invited for 10 Canter vehicles, though the Tiger Conservation Plan restricts operation of Canter Buses in the Dhikala area only to four, our attention is drawn by Mr. J.C. Pandey, learned Brief Holder appearing for the State Government to the Tiger Conservation Plan to submit that the said plan requires four Canter Buses to ply in the forenoon and four in the afternoon; and it is in the discretion of the Director either to permit the same Canter Buses to ply in the forenoon and in the afternoon or to permit four separate Canter Buses to ply in the forenoon, and four other Canter Buses to ply in the afternoon. As these are matters for the Director, Corbett Tiger Reserve to decide, suffice it to direct that in no case can more than four canter buses be permitted to ply in the morning and not more than four Cantor Buses can be permitted to ply in the afternoon session, in the Dhikala area of the Corbett Tiger Reserve, since the Tiger Conservation Plan permits operation of only four canter buses at a time. We are satisfied with the submission of the Director, Corbett Tiger Reserve that bids were invited for registration of 10 canter buses to ensure that no problems are caused to tourists because of breakdown of vehicles; bids were invited for registration of vehicles, and mere registration does not mean that all the registered canter buses would be permitted to ply in the Dhikala area of the Corbett Tiger Reserve.

We see no reason, therefore, to interdict the tender process whereby bids were invited for registration of 10 canter buses. Suffice it to make it clear that, in compliance with the Tiger Conservation Plan, not more than four canter buses shall be permitted to ply in the forenoon session, and not more than four Canter Buses shall be permitted to ply in the afternoon sessions, each day within the Dhikala Zone of the Corbett Tiger Reserve. While it is open to the Director to prescribe that four canter buses shall ply in the forenoon, and four other Canter Buses shall ply in the afternoon, not more than four canter buses shall be permitted to ply at a time either in the forenoon or in the afternoon.

The mere fact that the appellant-writ petitioners are the lowest bidders does not confer any right on them to contend that the bids submitted by them should be accepted, and the tender process should not be cancelled. The appellant-writ petitioners were informed that on their procuring Canter Buses, and on the authorities being satisfied about the standard of its fabrication, they would consider awarding a work order, to them. No promise was made to the petitioner that, on their procuring Canter Buses, they would automatically be granted work orders.

Since the appellant-writ petitioners had procured canter buses, being well aware that it was only after the authorities were satisfied of the quality of the Canter Buses, would they consider granting work orders, and since the earlier tender process was cancelled even before work orders could be issued to the appellant-writ petitioners, no vested right of theirs has been violated by the cancellation of the tender process, more so, since cancellation of the tender was for valid reasons.

Viewed from any angle, we see no reason to interfere with the orders under appeal, except to make it clear that the Director, Corbett Tiger Reserve shall comply strictly with the Tiger Conservation Plan, and the directions aforementioned, while permitting canter buses to operate in the Dhikala Zone of the Corbett Tiger Reserve.

Subject to the aforesaid observations, all the Special Appeals fail and are, accordingly, dismissed. No costs.