Dismissed

M/S. Vairabee Associates v. the State of Assam and 4 Ors.

Gauhati HC11 Jul 2017WP(C)/611/2017

Case brief

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What is this about?

In writ petitions challenging the cancellation of a ferry tender and subsequent issuance of an Expression of Interest leading to departmental operation of Majuli ferries, the court held that the department had valid reasons to abandon the tender and the EoI was lawful under the Rules of 1968 as it did not award a settlement to a private party. Both petitions were dismissed.

What did the court decide?

Both writ petitions dismissed; parties to bear their own costs.

1.Heard Mr. S. Borthakur, learned counsel appearing for the petitioner in both the cases. Also heard Mr. Y. Doloi, learned Additional Advocate General, As sam, representing the respondents. Both these writ petitions arise out of common facts and hence, are being disposed of by this common order.

2.The Inland Water Transport Department, Assam, is responsible for operati ng three Ferry Services from Neamati to Majuli out of which Neamati-Kamalabari F erry Service is one of them. On expiry of the existing lease for the year 2014-1 5 the respondent Inland Water Transport (I.W.T.) Department had floated a tender for settlement of the Neamati-Kamalabari Ferry Service by publishing the notice dated 13.12.2014 in the vernacular daily newspaper i.e. the Dainik Janambhumi. Since only two tenders were received in response to the notice dated 13.12.2014,

hence, the tender process was called off by the department and the re-tender no tice dated 25.02.2015 was issued. Pursuant to the notice dated 25.02.2015, an or der of settlement dated 18.06.2015 was issued in favour of one Om Prakash Agarwa lla. The said order of settlement dated 18.06.2015 was challenged before this Co urt in WP(C) No.3697/2015. Taking note of the fact that settlement granted in fa vour Om Prakash Agarwalla had been withdrawn by the department during the penden cy of the proceeding, this Court had passed an order dated 04.09.2015 disposing of the writ petition with a direction to the departmental authorities to process the settlement by inviting fresh tender and complete the same within a period o f two months. In terms of the order dated 04.09.2014, a fresh tender notice date d 25.09.2015 was issued by the authorities for settlement of the Neamati-Kamalab ari Ferry Service but the said NIT was also challenged before this Court by fili ng WP(C) No.6302/2015 and WP(C) No.574/2016. By order dated 01.08.2016 this Cour t had disposed of both these writ petitions with a direction upon the department to publish a fresh tender notice for settlement of the Neamati-Kamalabari Ferry Service by bearing in mind the schedule of rate that was notified on 27.08.2010 . In terms of the directions contained in the order dated 01.08.2016 the respond ent No.5 had issued re-tender notice dated 29.09.2016 inviting bids for settleme nt of the Ferry Service but had later cancelled the said notice vide order dated 17.10.2016. Thereafter, again on 06.12.2016 a re-tender notice was issued for s ettlement of the Neamati-Kamalabari Ferry Service for the remaining period of th e financial year 2016-17 fixing the value of the �Ghat � at Rs.1,32,35,000/-.

3.Responding to the NIT dated 06.12.2016 the petitioner, besides five othe r tenderers, had submitted their bids. On opening of the tenders, the rate quote d by the petitioner emerged as the highest offer. According to the petitioner, u nder the rules, the petitioner was entitled to an order of settlement on the bas is of its offered rate but the authorities did not take any action for awarding the settlement in favour of the petitioner.

4.It is pertinent to mention here that earlier, one Kumud Das had challeng ed the NIT dated 06.12.2016 by filing WP(C) No.7738/2016 before this Court where in an interim order dated 20.12.2016 was passed by this Court restraining the re spondents from opening the tenders. It appears from the record that despite the interim order dated 20.12.2016, the respondents had opened the tenders apparentl y due to a communication gap. Subsequently, WP(C) No.7738/2016 was dismissed on withdrawal. After the dismissal of WP(C) No.7738/2016, the petitioner was expect ing an order of settlement in its favour, but was surprised to know about the of fice order dated 25.01.2017 issued by the Commissioner & Secretary to the Govern ment of Assam, Transport Department, communicating the decision of the Governmen t to operate all the three Majuli based Ferry Services departmentally, under the direct superintendence of the District Magistrates of Majuli and Jorhat with im mediate effect until a policy decision was in place for proper management and op

eration of Majuli based Ferry Services. The result of the Government order dated 25.01.2017 was that no order of settlement was issued in favour of the petition er. Aggrieved thereby, the petitioner firm had approached this Court by filing W P(C) No.611/2017 assailing the order dated 25.01.2017 with a further prayer for directing the respondents to issue the order of settlement of the Ferry Service in favour of the petitioner.

5.During the pendency of WP(C) No.611/2017, the Inland Water Transport Dep artment had started running the Neamati Kamalabari Ferry Service departmentally. In order to further streamline the operation of the Ferry Services, the respond ent No.5 i.e. the Executive Engineer, Inland Water Transport Division, Dibrugarh , Assam, had published the Expression of Interest (EoI) dated 10.02.2017 invited offers from reputed boat owners for operation of their Wooden Single Boats in t he two Majuli based Ferry Services, viz., Neamati-Kamalabari and Cinnatoli-Bogor iguri-Neamati Ferry Services under the I.W.T. Division, Dibrugarh. Thereafter, t he respondent No.5 had issued an office order dated 15.02.2017 cancelling the te nder of Neamati-Kamalabari Ferry Service. Aggrieved by the EoI dated 10.02.2017 as well as the office order dated 10.02.2017 the petitioner had approached this Court by filing WP(C) No.1705/2017.

6.Mr. Borthakur, learned counsel for the petitioner, submits that the only reason why the tender was cancelled and a decision was taken to run the Ferry S ervice departmentally is to deprive the petitioner of the fruits of the tender p rocess. Mr. Borthakur further submits that there was no justification for the de partmental authorities to run the Ferry Services departmentally ignoring the hig h price offered by the petitioner merely on the basis of some frivolous complain ts allegedly made by the public which were not even verified through a proper en quiry process. The learned counsel for the petitioner submits that even assuming

that the departmental authorities were justified in operating the Ferry Service s departmentally, yet, the Control and Management of Ferries Rules, 1968 (herein after ’the Rules of 1968’) does not permit the Government to allow private boat operators to run the Ferry Services without floating any tender or public auctio n and to that extent the EoI issued by the department is in direct contravention of the provisions of the Rules of 1968. In support of his aforementioned argume nts, Mr. Borthakur has relied upon a decision of the Calcutta High Court in the case of Narendra Prosad Singh vs. State of West Bengal and others reported in AI R 1957 Cal 98 to contend that if a public ferry is leased out it can only be don e by way of public auction on such terms as the Magistrate, with the approval of the Commissioner, directs. Mr. Borthakur submits that since the Rules prescribe a procedure for leasing out ferry services, the departmental authorities could not have issued the EoI and resorted to the present procedure so as to subvert t he scheme of the Rules.

7.Resisting the argument advanced on behalf of the petitioner, Mr. Y. Dolo i, learned Additional Advocate General, Assam, has invited the attention of this Court to the communications dated 20.10.2016 issued from the Chief Minister’’ S ecretariat and also the communication dated 24.01.2017 issued by the I.W.T. aut horities to contend that taking note of public complaints received on regular ba sis regarding the exorbitant fares charged by the lessees of ferry services and also in view of the safety concerns involved in the matter, the Government had t aken a policy decision to operate the three vital Ferry Services, viz., Neamati- Kamalabari Ferry Service, Aphala-Neamati Ferry Service and Cinatoli-Bogoriguri-N eamati Ferry Service departmentally. Since ferry service is the only available m ode of transportation to Majuli Island, in order to streamline the transportatio n system for the benefit of the public, a decision was taken to allow private bo at operators to operate Ferry Services on condition of payment of tolls to the G overnment and every boat owner who meets the requirements laid down in the EoI w ould get a licence to operate the Single Wooden Boat as per the Government decis ion. Mr. Doloi submits that the decision to operate the Ferry Services departmen tally has been taken bearing the public interest in mind making an open offer to

9.From a perusal of the counter-affidavit filed by the department, it is a pparent that the authorities had taken a decision in principle to operate the Fe rry Services through the department and that is the reason why the process initi ated on the basis of NIT dated 06.12.2016 was not taken to its logical conclusio n. The mere fact that the tenders were opened and the petitioner had emerged as the highest bidder would not confer any indefeasible right upon the petitioner t o get the settlement order and therefore, no right of the petitioner can be enfo rced in the present writ proceeding in so far as the NIT dated 06.12.2016 is con cerned. Even after opening of the tenders the departmental authorities would be well within their jurisdiction and competence to abandon the tender process for good and sufficient reasons. As noted above, I find that there were valid reason s for the departmental authorities to take a decision of operating the Ferry Ser vices departmentally and the said decision cannot be termed as arbitrary and ill egal in the facts and circumstances of the case. It is also to be noted herein t hat the period for which the NIT dated 06.12.2016 was issued had also come to an end on 31.03.2017.

10.Coming to the second limb of challenge made by the petitioner to the EoI dated 10.02.2017, I find that the respondent No.5 had issued the same inviting response from reputed boat owners of the area who are interested to operate thei r wooden boats as Ferry Service on condition of payment of toll to the Governmen t. From a minute scrutiny of the terms and conditions contained in the EoI it i s apparent that find no settlement of the ferry service has been awarded in favo ur of any private party through the aforementioned EoI but the same is merely an

arrangement made by the department to further streamline and strengthen the tra nsportation system to the Majuli Island by enforcing stringent safety norms. It is also not in dispute that the I.W.T. department is still operating the Neamati -Kamalabari Ferry Service through the departmental vessels. 11.As per Section 4(b) of the Northern India Ferries Act, 1878, the local G overnment would be authorised to take possession of private ferry and declare it

to be public ferry. Rule 4(1) of the Rules of 1968 also permits the Government to manage ferries which could not be settled either by public auction or by call ing for tenders, with the approval of the Government. In view of the above provi sions contains in the Rules, it cannot be said that the EoI published on 10.02.2 017 is contrary to the provisions of law.

12.It is no doubt true that in matters of public auction the departmental authorities would be required to follow a fair and transparent process. But, as has been mentioned above, the present is not a case where the respondent author ities had acted with any degree of unfairness or in a discriminatory manner whil e deciding to operate the Ferry Services departmentally. The petitioner has also failed to substantiate the allegations of malafide brought against the authorit ies.

13.For the reasons stated hereinabove, I am of the view that both the writ petitions are devoid of any merit and the same are accordingly dismissed. Howeve r, having regard to the facts and circumstances of the case, the parties to bear their own costs.

M/S. Vairabee Associates v. the State of Assam and 4 Ors.

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M/S. Vairabee Associates v. the State of Assam and 4 Ors.

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