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Judgment
Soumitra Pal, J.—In the writ petition, being W.P. 11229 (W) of 2012, affirmed on 1st June, 2012 (hereinafter referred to as ''the first writ petition'') the petitioner No. 1, The West Bengal Motor Vehicle Weighbridge Corporation Limited, a joint venture company and its Managing Director, the petitioner No. 2 have prayed, inter alia, for the following reliefs:-
"(a) A writ of or in the nature of Mandamus be issued directing the State respondents particularly the Respondent No. 1 to make the weighbridge/check post located between Kharagpur and Jharkhand Border on NH-6 in between km 174 to km 175 operational forthwith;
(b) A writ in the nature of Mandamus be issued directing the respondents and particularly the respondent No. 1 to forthwith engage Motor Vehicle Inspectors and police personnel at the aforesaid check post site in order to make it functional immediately;
(c) A writ in the nature of Direction be issued directing the concerned State respondents particularly the respondent No. 1 to execute and register the 12 nos. of supplementary agreements mentioned in paragraph 22 and Annexure P/12 referred to above within such time and in such manner as may be directed by this Hon''ble Court;"
The writ petition, being W.P. No. 18273 (W) of 2012 (hereinafter referred to as ''the second writ petition''), affirmed on 16th August, 2012, was filed during the pendency of the first writ petition by the same petitioners in the first writ petition, praying, inter alia, for the following reliefs:-
"(a) A writ of or in the nature of mandamus be issued commanding the respondents and each of them to act strictly in accordance with law;
(b) A writ of or in the nature of mandamus be issued by quashing the impugned letter of termination being Memo No. 2706-WT/66- JSRM/WEIGHBRIDGE-1/07 dated 01.8.2012 being Annexure "P/15" hereof;
(c) Alternatively, a writ of or in the nature of Mandamus be issued commanding the State respondents and particularly the respondent No. 3 to forthwith cancel and/or withdraw and/or rescind the impugned letter of termination dated 01.8.2012 issued under Memo No. 2706-WT/66-JSRM/WEIGHBRIDGE-1/07;"
After the writ petitions were filed, on 12th October, 2012 orders were passed directing the parties to file affidavits. By the said order the state respondents were restrained from taking steps on the basis of the letter of termination of contract dated 1st August, 2012, being Annexure 15 to the second writ petition, till 18th December, 2012 which subsequently by orders was extended and is continuing. The point of maintainability of the writ petitions raised by the state respondent was kept open.
Though directions were issued to file affidavits, WBTIDC had only filed its affidavit-in-opposition to the second writ petition.
It appears from facts that the writ petitioner No. 1, a joint venture company between WBTIDC and M.A Construction, was formed on 4th July, 2003. Certificate of commencement in favour of the petitioner No. 1 was issued 5th September, 2003. On 23rd February, 2004 in the Board meeting of the petitioner No. 1, 1000 equity shares were allotted in favour of the State.
It requires to be mentioned that before the Supreme Court in Paramjit Bhasin v. Union of India: (2005) 12 SCC 642 certain notifications issued by some States under section 200 of the Motor Vehicles Act, 1988 (for short the ''Act'') were challenged. The stand of the petitioner therein was that by the said notifications certain actions outside the ambit of section 200 of the Act have been covered which were in clear violation of mandate contained in sections 113 and 114 read with section 194 of the Act. The stand of the petitioners therein was the notifications issued in effect condoned the offence and permitted its continuance though legally no such continuation could have been permitted. The stand of the petitioners was what was permissible was composition of offences punishable under section 194. It did not however permit continuance of the infraction after such compounding. Therein the Supreme Court held as under:-
"12. It is indisputable that the power of compounding vests with the State Government, but the notification issued in that regard cannot authorise continuation of the offence which is permitted to be compounded by payments of the amounts fixed. If permitted to be continued, it would amount to fresh commission of the offence for which the compounding was done. The State Governments which have not yet withdrawn the notifications shall do it forthwith. So far as the practical difficulties highlighted are concerned, it is for the State Governments concerned to make necessary arrangements to ensure that the difficulties highlighted can be suitably remedied by the State Government themselves without in any way overstepping the statutory prescriptions.
After the said judgment was pronounced, in order to carry out the directions contained therein, on 13th July, 2007 an advertisement was published by the State inviting Expressions of Interest for setting up weighbridges at 17 locations in West Bengal. Since no response was received, on 12th September, 2007 a fresh advertisement was issued. The petitioner No. 1 participated in the bid. On 12th February, 2008 the petitioner, found to be a successful bidder in respect of 12 locations, by 12 independent orders was awarded the contract to set up check posts at 12 locations. On 27th March, 2008, 12 separate registered concession agreements (for short ''the agreements'') were entered into between the State and the petitioner No. 1. The petitioner No. 1 undertook the job to set up check posts. Thereafter, as evident from records, by letters dated 2nd September, 2009 and 13th April, 2010 the Transport Department of the State requested the Ministry of Road Transport and Highways to look into the matter regarding issuance of no objection certificates with regard to access to National Highway land from NHAI. The Transport Department of the State by letter dated 21st January, 2010 also requested the PW (Roads Directorate) to look into the matter regarding the issuance of no objection certificates to the operators with regard to 12 locations. Thereafter, on 21st March, 2011 the petitioner forwarded 12 supplementary agreements, all identical in nature, to the State respondent for due execution thereof. On 13th April, 2011 the Special Secretary, Transport Department by a letter recorded its "no objection in principle to changes proposed in the draft supplementary agreement". On 13th June, 2011 the petitioner No. 1 intimated the State that the check post situated between Kharagpur and Jharkhand border was lying ready for immediate function. Soon thereafter on 26th July, 2011 the District Magistrate, Paschim Medinipur intimated the Transport Department that the site between Kharagpur and Jharkhand border was fit for operation. In between 11th August, 2011 and 7th May, 2012 representations were furnished by the petitioner No. 1 to the State respondent for posting Motor Vehicle Inspector and police personnel at the Kharagpur and Jharkhand border check post. Request was also made to execute 12 supplementary agreements in respect of 12 sites for installation of weighbridges. During the pendency of the first writ petition, the Additional Secretary, Government of West Bengal, by letter dated 1st August, 2012 cancelled the agreements relating to 11 locations, barring agreement with regard to the location between Kharagpur and Jharkhand border regarding which the decision was kept pending. The second writ petition was filed challenging the said letter of termination of contract.
Mr. Sandip Ghosh, learned advocate appearing on behalf of the petitioners submitted that the agreement entered into between the State of West Bengal and the petitioner No. 1 was a concluded contract between the parties and was a statutory contract within the meaning of sections 112, 113, 114 and 194 of the Motor Vehicle Act, 1988 read with Rule 287(1) (ii) of West Bengal Motor Vehicle Rules 1989. Submission was the obligations of the Government were embodied in Articles 7.3.1, 7.3.5. 7.3.6. 7.3.7 of the agreement. Article 10 of the said agreement granted liberty to the petitioner to appoint its own agencies for various functions necessary for implementation and operation of the project who may be designated as sub-contractor, sub-operator/operator, collaborator and specialised functionaries. In the event for reasons beyond control the petitioner was unable to complete the project within 36 months, the said Article provided for extension of time to complete the project beyond the initial term of 36 months. Referring to Article 15.2 submission was the Government was obliged to point out the default as contemplated under Article 15.1(a) and to give a chance to the petitioner No. 1 to rectify any default within a further period of 36 months. In the event the petitioner No. 1 failed to rectify the default as per Article 15.2 the Government was entitled to terminate the agreement after giving 24 months prior notice. The said Article also stipulated if the petitioner removed the default within the notice period then termination was not to take effect. Reference was made to Article 17 of the agreement which provided resolution of disputes through arbitration. Submission was though repeated requests were made by the petitioner for execution of supplementary agreements, the State, in spite of specific promise by letter dated 13th April, 2011, terminated the contract without following the prescriptions in Articles 15.2 and 15.3 of the agreement as no opportunity was given to the petitioner to rectify the default, if any. Since no opportunity of hearing was given to the petitioner No. 1, such termination was in violation of the principles of natural justice. As the agreement executed between the Governor of the State and the petitioner No. 1 was in accordance with the provisions contain in Article 299 of the Constitution of India and the same was terminated by the Additional Secretary of the Transport Department without following the prescription under Article 166 (2) of the Constitution, the impugned letter of termination is bad in law and is liable to set aside.
Referring to the letter dated 13th April, 2011 submission was that the promise to execute 12 supplementary agreements after the 2011 State Assembly Elections cannot be ignored as by letter dated 9th September, 2011 which was in response to petitioner''s letter dated 28th June, 2011, the petitioner No. 1 was invited to attend a meeting on 15th September, 2011 in connection with the execution of the supplementary agreements. Thereafter though by letter dated 28th September, 2011 and by subsequent reminders dated 22nd February, 2012 and 7th March, 2012 request was made by the petitioner No. 1 for execution of the supplementary agreements, no reply was received.
On the role of the WBTIDC submission was it is a joint venture partner of the petitioner No. 1. It has its nominee director in the petitioner company. Being a joint venture partner it was a participant in the tender process. In the writ petition there is no allegation against the WBTIDC. No relief has been sought against WBTIDC. Therefore, WBTIDC cannot raise any objection. Hence, the submission on behalf of WBTIDC be ignored. Referring to the affidavit of WBTIDC to the second writ petition it was submitted that though WBTIDC has challenged the entire selection process, including setting up of weighbridges by Toofangunj and Shamiyana, fact remains that after the order dated 12 September, 2014 was passed by the Division Bench in APOT 7/2014 (State of West Bengal v. Shamiyana Infrastructure Pvt Ltd.) with regard to the self-same tender process, it is now a settled law that the instant writ petitions are maintainable wherein the arbitrariness of the State action or inaction and the violation of the principles of natural justice have been highlighted. Since none of these facts have been disputed either by the State or by WBTIDC, the maintainability of the writ petition cannot be questioned. Submission was though the agreement contained a clause for settling the dispute through arbitration, the writ petition is maintainable as there has been violation of the principles of natural justice. On the point inability of the petitioner No. 1 to complete the project within the initial 36 months, submission was as under Articles 7.3.1 and 7.3.6 of the agreement it was an obligation on the part of the State to obtain permission from the National Highway Authority and there was inaction on the part of the State to obtain such permission, the petitioner cannot be faulted for the delay in completing the project. Though representations dated 28th September 2011, 22nd February, 2012 and 7th May, 2012 were issued to State authorities, no reply was received. It revealed that the State had failed to persuade NHAI in seeking permission. As the District Magistrate by letter dated 26th July, 2011 addressed to the Transport Department of the State had certified that the check post at the Kharagpur - Jharkhand border was ready for operation, the respondents had thereby waived the alleged cut off period of 36 months. Hence, the State is estopped from going ahead with the letter of the termination.
Relying on the judgment dated 12th September, 2014 in APOT 7/2014 (State of West Bengal v. Shamiyana Infrastructure Pvt. Ltd.) whereby the appeal of the State was turned down, submission was the State cannot take a contrary stand as pursuant to the said judgment notification dated 27th November, 2014 was issued thereby settling all the issues raised in these writ petitions.
Submission was as neither the State nor WBTIDC, in spite of directions, had filed affidavits in opposition in the first writ petition, the statements made therein are remain uncontroverted. So far as the second writ petition is concerned, since WBTIDC only had filed its affidavit in opposition, State having not filed its affidavit cannot now plead otherwise. Submission was the report in form an affidavit filed by the State to the second writ petition was not an affidavit in opposition to the writ petition. That apart the contention of the State with regard to the tender process in paragraphs 6 and 7 in the said affidavit was negated by the Division Bench in the judgment delivered on 12th September, 2014. With regard to the stand of the WBTIDC submission was that since it was party to the joint venture company and had never showed any disinclination to proceed with the project, now it cannot take a different stand. Mr. Ghosh had submitted a written note of submission which is on record.
Mr. Abhrajit Mitra, learned Senior Advocate appearing on behalf of the WBTIDC submitted that the agreement dated 27th March, 2008 is an agency contract which is expressly terminable. As evident from Article 2(5) of the agreement the relationship between the petitioner No. 1 and the State is that of principal and agent. Relying on section 14(1)(b) of the Specific Relief Act 1963 submission was that a contract which is expressly terminable cannot be specifically enforced irrespective of the fact whether termination was in terms of the contract or not.
Submission was in this case 36 months to complete the project had expired. As per Clauses 15.1, 15.2 and 15.3 only in cases where the contract is terminated before the expiry of 36 months for breach of any other terms of the contract, the question of providing the petitioner No. 1 with the opportunity to rectify such breach and giving prior notice arise. Even then relief of specific performance is ordinarily not granted by way of an order passed in a writ petition. The writ petitioner does not state what is so extraordinary in this case so as to warrant a departure from the practise normally followed. Even if the notice of termination of contract is held to be bad in law, Court cannot direct the specific performance of a contract especially after the State and the respondent nos. 4 and 5 submitted that they are not willing to have the contract performed by the petitioner. Submission was the facts in the present writ petitions and in Shamiyana Infrastructure Pvt. Ltd. in W.P. No. 463 of 2013 are different. Shamiyana had admittedly completed its part of the contract within time, whereas the writ petitioner No. 1 has been unable to set up the weighbridges within the stipulated time frame. Moreover, in the case of Shamiyana contract was not terminated under clause 15 of the agreement, whereas in the case of the present writ petitioners in the first and second writ petition there was a letter of termination. Further the case of Shamiyana was that the State even without terminating the contract and after admitting the fact that the contract was duly performed was not making the facility fully operational. Further, the writ petitioners are not entitled to contend that the State Government and the respondent No. 4, as alleged joint venture partner of the petitioner No. 1 are not entitled to terminate the contract and/or refuse to perform the agreement dated 27th March, 2008 since such a case has not at all been made out in the first and second writ petition and this is also not one of the grounds on which the writ petitions were filed. In the absence of pleadings on a particular issue in a writ petition, Court cannot go into that issue. As the agreement provides for an arbitration mechanism for resolving a dispute arising out of the agreement, the writ petition should be dismissed. So far as the letter dated 13th April, 2011 is concerned, submission was as the agreement dated 27th March, 2008 expired on 26th March, 2011, the letter dated 27th June, 2011 by the petitioner No. 1 praying for extension of time and the letter dated 9th September, 2011 inviting the petitioner No. 1 to have discussion on the supplementary agreements and the consequent meeting held and thereafter the letter dated 28th September, 2011 can at best the called a contract to enter into a future contract. Such a contract is not a contract in the eye of law. Though contractual disputes cannot be raised in the writ petition, however, the petitioners in effect are praying before the Court to re-write the contract terms by overlooking Articles 15 and 7.2 which pertain to the maximum completion period and termination of contract in default thereof. Moreover the arbitration clause cannot be given a go-by. Referring to the notification dated 29th September, 2014 issued by the Government of West Bengal, Transport Department, submission was it only goes to show that the Government has accepted the case of Shamiyana for operation of a particular weighbridge. In the case of remaining locations, the State has formed a task force to operate the Motor Vehicle Check Posts with Motor Vehicle Inspectors. In the notification there is no indication even indirectly that the State is waving the termination of contract with the petitioner No. 1 and/or permitting the petitioner No. 1 to establish and operate the remaining 12 weighbridges by extending the agreement dated 27th March, 2008. Mr. Mitra had filed written notes of argument which is on record.
Mr. Susobhan Sengupta, learned advocate appearing on behalf of the State submitted that there is no public law aspect in the first and second writ petitions. Though constitutional duty was imposed upon the State regarding the execution of the contract in these writ petitions the petitioners are trying to extend the tenure of the contract which has come to an end on 26th March 2011. By praying for execution of supplementary agreements the petitioners are trying to rewrite the contract and are seeking further extension of the contract. Since the petitioner could not complete the project in the stipulated period of 36 months, extension cannot be granted. The condition in the agreement cannot be altered except by mutual consent of the parties. Since no public law aspect is involved in determining the contract and in canceling the contract, no duty is cast upon the State with regard to contractual obligation. Since termination has been carried out in terms of the contract, the petitioner, if aggrieved, in order to settle the dispute, if any, has to seek remedy by invoking the provisions contained in Article 17 of the agreement.
The issues to be considered are i) Whether in the instant writ petitions aspects of public law are involved; ii) Whether, in view of the arbitration clause in the concession agreements, the writ petitions are maintainable; iii)Whether the tender process to install, operate and maintain weighbridges at 12 locations was done in transparent, free and fair manner and iv) Whether in view of the concession agreements between the petitioner No. 1 and the State, the State was justified in issuing the letter of termination dated 1st August, 2012.
In order to answer the issues it is appropriate to set out the letter of termination impugned in the second writ petition, which is as under:-
"Government of West Bengal
Transport Department
Writers'' Buildings
Kolkata- 700 001
No.2706 - WT/66-JSRM/WEIGHBRIDGE-I/07 01.08.2012
From: U.K. Bhattacharya, IAS
Additional Secretary to the Government of West Bengal
To : The Director,
West Bengal Motor Vehicles Weighbridge Corporation Ltd.
53C/1, Dr. S.C. Banerjee Road,
Kolkata - 700 010
Fax: 033-2335-8091
Sub: Termination of Contract for construction of Weighbridges at different locations of the State-information regarding.
Ref: This department''s No.
40(12)-JSRM/66/JSRM/EoI-RING-ROAD &
Weighbridges/ /07 dated 14.02.2008
Sir,
This department''s letter under reference may kindly be recalled. An order appointing your organisation as the agent to install, operate and maintain Weighbridge on BOO basis at 12 locations was issued by this department. An agreement in respect of each of the 12 sites was entered into between your organisation and this department with certain terms and conditions of which completion of the works at the locations within a given time of 36 months was a prime one.
The relevant papers available with the department on the tender on which the weighbridge check-posts were allotted seems to clearly indicate that there were serious irregularities and malpractices in processing of the tender and allotment of the work in favour of your organization. The instructions of the Finance Department also do not seem to have been followed and it seems that the process was not transparent, free and fair.
It has, further come to the notice of this department that although the work was allotted to your organisation to establish the weighbridge checkposts, the work was sub-leased/sub-allotted or otherwise by you to other agencies/operators without the approval of the GoWB in violation of Article 10 of the Agreement wherein it is clear that "the concessionaire may sub-lease rights of any or all the facilities to other operator(s) only with prior permission of GoWB". Further, even of the work of establishment of the weighbridges, the performance of your organisation has been extremely unsatisfactory. The report that was required to be submitted in schedule 2 of the Agreement on the progress of the work has also not been submitted regularly in respect of almost all the sites. The details that may have been submitted from your end were also not complete. The prescribed time limit is also over.
It is needless to mention that due to this, the Government''s policy of establishing weighbridges at the strategic locations as a measure to keep in check the plying of overloaded vehicles on the Government roads leading to the damages of the road, accidents endangering public etc. has suffered a serious setback. Views of the Finance Department, GoWB were also taken in this regard.
In view of the facts and circumstances narrated above, we are constrained to inform you that the agreements of execution of weighbridges at the following sites allotted to your organisation stand terminated with immediate effect.
Kharagpur to Orissa Border (NH-60) in between Km 59 to 60
Purulia to Chas (Jharkhand Border) (NH-31) in between Km 10 to 12
Ranigunge to Asansol (NH-2) in between Km 465 to 466
Dalkhola to Kisangunge (NH-31) in between km 455.6 to 456.6
Kamakhyaguri to Barabisha (Assam Border) (NH-31/C) in between Km 243 to 244
Uluberia to Mecheda (NH-6) in between Km 62 to 63
Dankuni to Baidyabati (NH-2) in between Km 649 to 650
Dankuni to Singure (NH-2) (Durgapur Expressway)in between Km 3 to 15
Panagarh to Moregram (State Highway) in between Km 53 to Km 54 or Km 75 to Km 86
Barasat Ranaghat and Chakda to Bongaon in between Km 57 to 61, Km 66 to 71, on NH-34 and Km 17 to 23 on NH-34/A
Raigunj to Dalkhola in between Km 412 to 420 on NH-34
In respect of the location at Kharagpur to Jharkhand Border (NH-6) in between KM 174 to 175, the decision of the Government will be communicated to you in due course.
Yours faithfully,
Additional Secretary
To the Government of West Bengal
So far as the first issue is concerned, admittedly pursuant to the directions contained in the judgment of the Supreme Court in Paramjit Bhasin (supra) State had issued tender notices for setting up weighbridges at 17 locations including the 12 locations which were awarded to the petitioner No. 1. The direction of the Supreme Court was to check overloading of vehicles which resulted in damages to the road surface and caused pollution through auto emission. As evident from the said judgment, overloading was/is a safety hazard. Hence, as the direction of the Supreme Court was for public good, Expressions of Interest were invited by the State of West Bengal. Bids were received. Bidders were selected. Thereafter concession agreements were entered into. In my opinion as such agreements were entered into for enforcement of the provisions of the Act and Rules made thereunder, in view of Rule 287(1)(ii) of the Rules those have a statutory flavour. Hence, in view of the law laid down in Paramjit Bhasin (supra) and the facts of this case and keeping the principles of law in Joshi Technologies International INC v. Union of India, (2015) 7 SCC 728, particularly the principles of law laid down in paragraphs 54, 70.9 and 71 thereof and Rule 287(1)(ii) of the Rules in mind, in my view aspects of public law are involved in the instant case.
So far as point of maintainability of the writ petitions are concerned, there is no dispute that Article 17 of the agreement stipulates that in the first instance "Dispute of whatever nature howsoever arising under, out of or in relation to this agreement" if "notified in writing by either party to the other�. in the first instance shall be attempted to be resolved amicably. If no such resolution is possible, then such dispute will be referred to arbitration". The question is since the concession agreements provided for resolution of dispute by arbitration, whether the writ petitions are maintainable. Considering the facts of the case, in my view the issue has been set at rest by the law laid down in Harbanslal Sahnia v. Indian Oil Corporation, (2003) 2 SCC 107 wherein it was held as under:-
" So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged�.." (paragraph 7)
In the instant case as the agreements, which have a public law aspect, were terminated without giving an opportunity of hearing, which was in violation of principles of natural justice, the writ petitions are maintainable.
So far as the third issue is concerned it goes without saying that pursuant to the judgement of the Supreme Court in Paramjit Bhasin (supra) State had issued an advertisement inviting Expressions of Interest for setting up weighbridges at 17 locations which included the 12 locations awarded to the petitioner No. 1. It appears from records that pursuant to the direction of the Court, the Transport Department of the State had filed a report in the form of an affidavit. In paragraph 5 of the said affidavit it has been stated that the -
"tender was finalised in respect of 14 locations when West Bengal Motor Vehicle Weigh Bridge Corporation Ltd. was favoured with 12 locations and other two locations of weigh bridge went to Toofangunj Construction & Engineering Company Pvt. Ltd. and Shamiyana Infrastructure Pvt. Ltd. Thus, according to Finance Department it was palpably clear that the process of tender was carried out in a completely high-handed fashion and the said single tender contract was an empty formality as only the above mentioned three private operators (including the writ petitioner No. 1) participated in the tendering process for the 14 locations respectively.
Moreover, it appeared to the Finance Department that the technical and financial proposals were not properly evaluated neither the concurrence of the Finance Department was obtained though the financial stake of the Government was substantial. Further, the share of the State Govt. in respect of the revenue to be collected through the operation of weigh bridges was abnormally low.
Finding that the entire decision making process suffers from illegality, irrationality and also procedural impropriety the Finance Department inter alia opined that all the said contract should be terminated and/or cancelled as the same being opposed to public policy as envisaged under Section 23 of the Indian Contract Act, 1872 and also violative of Article 14 of the Constitution of India.
The said affidavit contains the opinion of the Finance Department of the State of West Bengal dated 4th July, 2013 which was filed in compliance with the directions of the Court. It appears that in the opinion of the Finance Department there were two issues -
"(i) Whether the contracts for establishment of weigh bridges "on build own and operate" basis should have been granted in favour of (1) Toofangunj Construction & Engineering Company Pvt. Ltd., (2) Shamiyana Infrastructure Pvt. Ltd. and (3) West Bengal Motor Vehicles Weigh Bridge Corporation Ltd. in the facts and circumstances stated in the Case? (ii) Whether in this matter any departure from the established rules and procedures vitiates the process of selection?" .
In this regard it is appropriate to mention the relevant portion of the note dated 23rd April, 2007 prepared by the Ministry of Finance, Government of West Bengal which is as under:-
"It has been stated that the proposal does not involve any financial implication on the part of the Government. It may kindly be noted that the Government is acting as a facilitator in allowing the private party to do business. The private party will charge weighment fee from the operators of vehicles. This being the position, the selection of the private party should perhaps be done through proper evaluation of technical and financial proposals after inviting expression of interest." (page 44 of the affidavit in opposition by WBTIDC in W.P. No. 18273(W) of 2012)
As already noted the said tender process came up for challenge in W.P. 463 of 2013 Shamiyana Infrastructure Pvt. Ltd. and Anr v. The State of West Bengal. The learned Single Judge after considering the views of the Finance Department, which also form part of the affidavit in opposition filed on behalf of WBTIDC the second writ petition, held as under:
"In the light of it being the undeniable position that this was not a single tender contract and that invitations had been sought from parties to set up weigh-bridges at various locations and since the Finance Department had endorsed the Transport Department''s proposal on the ground that the project did "not involve any financial implication on the part of the Government", the grounds on which the effective operation of the weigh-bridge facilities set up by the petitioners are resisted appear to be without basis."
Aggrieved by the said judgment dated 6th December, 2013 passed in W.P. 463 of 2013 the State had preferred appeal, being APOT 7 of 2014 (State of West Bengal & Ors. v. Shamiyana Infrastructure Pvt. Ltd. and Anr), as already noted, which was disposed of 12th September, 2014 by the Division Bench by holding that-
"In the light of the said submission, we are of the opinion, none of the contentions raised before us are sustainable and accordingly we modify the judgment of the learned Single Judge to the extent that all the terms and conditions agreed between the parties are to be implemented except the share of the toll charges to be enhanced to 11.5 per cent as against 5.27 per cent. We direct the concerned department to expedite the entire process and do the needful in terms of the agreement within one month from today.
With these observations, the appeal is disposed of without any order as to costs. Consequently, the application is also disposed of."
Therefore, since Court had held the tender process to be proper, the report in the form of an affidavit of the State and affidavit in opposition of WBTIDC, both in W.P. 18273 (W) of 2012 cannot be accepted. Hence, the submission on behalf of the State that the tender process was not done in a transparent and fair manner is without any basis.
So far as the fourth issue is concerned, it appears that the letter of termination dated 1st August, 2012 was issued on the ground of "serious irregularities and malpractices in processing of the tender and allotment of the work" in favour of the petitioner No. 1 and also on the ground that the petitioner No. 1 had sub-let/sub-allotted the work to establish check posts to other agencies and operators without the approval of the Government of West Bengal. With regard to the allegation that the tender process was not done in a transparent and fair manner, as already seen, since the question has been set at rest by the judgment and order dated 6th December, 2013 passed in W.P 463 of 2013 which was confirmed by the Division Bench by judgment and order dated 12th September, 2014 in APOT 7 of 2014 State of West Bengal & Ors. v. Shamiyana Infrastructure Pvt. Ltd. and Anr, the submission of the respondents is unacceptable.
It is to be noted that the agreement was terminated by the Additional Secretary also on the ground that the petitioner No. 1 had sublet/sub-allotted the work to set up check posts to other agencies/operators without the approval of the State in violation of Article 10 of the agreement. Be it noted that the agreement was entered into between the Governor of West Bengal represented by Department of Transport, Government of West Bengal and the West Bengal Motor Vehicles Weighbridge Corporation Limited, the petitioner No. 1. Since, the contract, executed on behalf of the Governor, in accordance with Article 299 of the Constitution of India, was terminated by the Additional Secretary of the Transport Department, Government of West Bengal without following the stipulations under Article 166(2) of the Constitution of India and as nothing has been shown on behalf of the State that the Additional Secretary was duly authorised to issue the letter impugned, same cannot stand the test of law. It is to be noted that though directions were issued on the respondents to file affidavits in opposition to the writ petitions, as no affidavit was filed either on behalf of the State or on behalf of the WBTIDC in the first writ petition, and as therefore statements made by the petitioner have gone uncontroverted, State now cannot submit otherwise. So far as the second writ petition is concerned, therein too the State did not file its affidavit in opposition. The report in the form an affidavit does not deal with the statements contained in the second writ petition. Rather it highlights the alleged lack of transparency in the tender process which has not been accepted by the Court for reasons as mentioned hereinbefore. Hence, the doctrine of non-traverse of the statements in the writ petition by the State respondent also applies in the case of second writ petition. So far as the affidavit in opposition on behalf of the WBTIDC, the respondent nos. 4 and 5 in the second writ petition is concerned, it is strange that though they are a joint venture partner of the petitioner No. 1 and had suffered the order of termination, it has not questioned the order of termination. Though it is evident from the affidavit in opposition that the Transport Department by letters dated 2nd September, 2009 and 13th April, 2010 had written to the Ministry of Road Transport and Highways for grant of no objection certificate for having access through the National Highway land to the proposed site for installation of weighbridge, however the said affidavit is silent why WBTIDC, the deponent, did not pursue the matter for early completion of the projects.
There is another aspect of the matter. Now a days attempts are made to resolve disputes by resorting to the alternative dispute resolution mechanism system. It is an attempt to end a dispute through conciliation or compromise. Though Article 17 of the agreement provides an opportunity to the parties to settle a dispute amicably in the spirit of conciliation, yet the State did not give it a try. As a result the dispute, if any, which could have been resolved, has been hanging fire for more than five years. It is really unfortunate that though Supreme Court by judgment delivered on 9th November, 2005 in Paramjit Bhasin (supra) made an endeavour to end the problems of overloading of goods on the roads in the country, however there is lack of intiative on behalf of the State to break the impasse by resorting to conciliation as stipulated in Article 17 of the agreement itself.
Before I part with the judgment there is another aspect which needs to be highlighted. Though the West Bengal Motor Vehicles Weighbridges Corporation Ltd., the petitioner No. 1, a joint venture company of WBTIDC and M.A construction still exists and the nominee of the State is on its board of directors, yet WBTIDC had not taken any initiative to ensure that the check posts are set up and made operational. Rather WBTIDC has opposed the writ petitions. The stand of the WBTIDC is really peculiar.
Hence, for the reasons as aforesaid the impugned order of termination dated 1st August, 2012 is set aside and quashed. The writ petition, being W.P. No. 18273 (W) of 2012 is allowed. The writ petition, being W.P. No. 11229 (W) of 2012 is disposed of. Accordingly the Secretary, Ministry of Transport, Government of West Bengal, the respondent No. 1 is directed to consider the letter dated 21st March, 2011, being Annexure P11 to the writ petition, being W.P. No. 11229 (W) of 2012 and shall pass a reasoned order, to be communicated to the parties, after giving an opportunity of hearing within four weeks from the date of presentation of a copy of the certified copy of this order. In the facts and circumstances no order is passed with regard to the writ petition, being W.P. No. 14020 (W) of 2012 and is disposed of.
No order as to costs.
Urgent photostat certified copy of this judgement and order, if applied for, be furnished to the appearing parties on priority basis.