High Court of Meghalaya
Smti. Ridalin Law vs . The Jaintia Hills Autonomous District on 8 February, 2024
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No. 43 of 2023
Date of Decision: 08.02.2024
Smti. Ridalin Law Vs. The Jaintia Hills Autonomous District
Council & Ors.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Hon'ble Mr. Justice B. Bhattacharjee, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. H.L. Shangreiso, Sr. Adv. with
Ms. E. Wanniang, Adv.
For the Respondent(s) : Mr. N. Mozika, Sr. Adv with
Mr. M.L. Nongpiur, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT
Per W. Diengdoh, J.
1. The background facts as could be ascertained from the records
is that the respondent No. 6 has floated a tender dated 18.10.2021 for
appointment of an Agent to run the check station at Mookyndur within
the jurisdiction of the Jaintia Hills Autonomous District Council
(JHADC) for the purpose of identifying/detecting illegal trading by
commercial vehicles of non-tribal traders within such jurisdiction.
2. After all the formalities having been completed, the appellant
being the highest bidder and being found suitable in all respect was
expecting that she be awarded the agency, however, the respondent
JHADC instead awarded the work to the second highest bidder, one Shri
Rudolf G. Kyndiah. On the same being challenged before this Court in
WP(C) No. 29 of 2022, this Court vide order dated 26.09.2022 set aside
the appointment order dated 16.02.2022 and directed the respondents to
re-examine the requirements and norms for setting up of the said check
station.
3. The appellant on the strength of the order/communication dated
26.10.2022, by which the respondent/JHADC has indicated that the
allotment to run the check station may be offered to the
appellant/petitioner on the condition that she make arrangement for a
suitable plot of land to set up the check gate, the same was according
done so by her. However, the respondents apparently on a legal notice
being issued by Shri. Rudolf G. Kyndiah, the unsuccessful second
highest bidder, cancelled the said order dated 26.10.2022 and
alternatively has decided to run the check station departmentally but at a
different location, that is, at Khliehtyrshi, a place about 5 km from
Mookyndur.
4. Being aggrieved by such action of the respondent/JHADC, the
appellant as petitioner has again come before this Court with a writ
petition being WP(C) No. 72 of 2023. This Court in a Single Bench, vide
judgment and order dated 11.09.2023 disposed of the matter in manner
set therein.
5. The appellant not being satisfied with the said judgment and
order dated 11.09.2023, has now come before this Division Bench on
appeal.
6. Mr. H.L. Shangreiso, learned Sr. counsel appearing for the
appellant in his argument has submitted that in the first place, the Court in
WP(C) No. 29 of 2022 vide judgment and order dated 26.09.2022,
whereby the respondents on being directed to relook and review the
matter have been duly complied with. Consequently, the action of the
respondents in directing the appellant to comply with certain conditions
as could be seen from the letter dated 26.10.2022, that is, to provide a
suitable land with laybye was only done in compliance with the said order
of this Court which was fulfilled by the appellant. Therefore, for the
respondents to recall its earlier decision and to cancel the offer of
appointment to run the said check station at Mookyndur by the appellant
only on the ground that a legal notice was issued upon such respondents
by one of the failed tenderers, who at the relevant point of time no longer
has any locus standi, is clearly an action done arbitrarily and with
malafide intent.
7. Another limb of argument advanced by the learned Sr. counsel
for the appellant is that the learned Single Bench after having observed
that the decision-making process of the respondents in offering and
thereafter in cancelling the offer made to the appellant without hearing
her is flawed and to this extent, cost of ₹ 2,00,000/- (rupees two lakhs)
only was imposed upon the respondents/JHADC, yet has refused to grant
the relief sought for only on the ground that no pleading has been made
by the appellant/petitioner in her writ petition against the action of the
respondents/JHADC to shift the said check station from Mookyndur to
Khliehtyrshi. The learned Single Bench has, however, failed to
acknowledge the fact that while directing the respondents/JHADC to
produce relevant materials/records with regard to its decision to shift the
check station from Mookyndur to Khliehtyrshi, copy of a lease agreement
dated 18.11.2022 executed between the JHADC and Smti. Neh Rymbai
for the land at Khliehtyrshi for the purpose of running the said check
station was produced, which lease agreement was executed only within
22 days from the date on which the offer dated 26.10.22 was made to the
appellant/petitioner to comply with the conditions for running of the
check station at Mookyndur. The action of the respondents in doing so
has clearly revealed a predetermined mind not to settle the contract with
the appellant/petitioner which was lost sight of by the learned Single
Bench.
8. The learned Sr. counsel has further submitted that the intention
of the respondents to deny the settlement of contract to the appellant is
apparent when, in the process of shifting of the said check station from
Mookyndur to Khliehtyrshi, one Sevenborn Tang was appointed to run
the said check station on commission basis. It was only when this Court
was informed of the same that an observation was made in this appeal
vide order dated 18.10.2023 requiring the respondent/District Council to
take corrective measures in this regard, was the appointment of the said
Agent cancelled.
9. The learned Sr. counsel has again submitted that as conceded by
the respondent in course of the hearing of this appeal, there is no record to
show that the NIT dated 18.10.2021 was formally dropped or cancelled
and as such, the same is still subsisting till date and the issuance of the
communication dated 16.03.2023 recalling the offer of appointment to the
appellant by the respondents could not in any manner be described as an
abandonment of the said NIT in question. The right of the
appellant/petitioner vis-à-vis the consideration to operate the check
station at Mookyndur is therefore, subsisting till date. The observation of
the learned Single Bench that the entire tender process was abandoned
was without any legal basis, it was further submitted.
10. In a counter to the argument of the respondents that one of the
reasons for the shifting of the check station from Mookyndur to
Khliehtyrshi is on the ground that there is likely to be a traffic crisis at
Mookyndur in the event the check station is functioning therefrom, the
learned Sr. counsel for the appellant has submitted that this cause was not
cited in the impugned recall letter dated 16.03.2023 and as such, fresh
reasons cannot be supplemented in the shape of affidavit or otherwise in
course of proceedings before the Court.
11. Finally, the learned Sr. counsel has submitted that on the basis
of the argument raised herein, this Court may be pleased to interfere with
the impugned judgment and order dated 11.09.2023 passed by the Single
Bench in WP(C) No. 72 of 2023 to the limited extent by allowing this
appeal and to further be pleased to direct the respondent/District Council
to issue the letter of appointment and for the agreement to be executed as
per condition No. 15 and 16 of the NIT dated 18.10.2021.
12. In support of the case of the appellant, the following authorities
have been cited:
i. Tata Cellular v. Union of India, (1994) 6 SCC 651, paras 70
and 77;
ii. K.D. Sharma v. Steel Authority of India Limited & Ors.,
(2008) 12 SCC 481, paras 34 and 36;
iii. Janak Dulari Devi & Anr. v. Kapildeo Rai & Anr.; (2011) 6
SCC 555, para 9;
iv. Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors.;
(2010) 10 SCC 677, paras 24 and 25;
v. Airport Authority of India v. Centre for Aviation Policy,
Safety and Research (CAPSR) & Ors., 2022 SCC Online
SC 1334, para 6; and
vi. Union of India & Ors. v. Bharat Forge Ltd., 2022 SCC
Online SC 1086, paras 18, 19, 20.
13. Dr. N. Mozika, learned Sr. counsel appearing for the
respondent/JHADC in response has submitted that the first argument
raised herein is the fact that in the first round of litigation, that is, WP(C)
No. 29 of 2022, the prayer of the petitioner therein who is also the
appellant herein, is for the court to direct the petitioner/appellant herein to
be appointed as Agent to operate the check station at Mookyndur,
however, the learned Single Bench vide order dated 26.09.2022 has
refused to accede to such prayer but has instead directed the relevant
respondent to have a relook at the decision especially the process thereof,
before any decision of allotment is taken.
14. This ruling, according to the learned counsel for the respondent
has not been challenged by the petitioner/appellant in appeal and as such,
the same has attained finality. In WP(C) No. 72 of 2023 the same prayer
for appointment of the petition/appellant was made. The appellant being
barred from seeking the same relief which was denied/not granted to her
in the earlier round of litigation, the principle of resjudicata would thus
apply in this case. Therefore, no effective relief could be claimed by the
appellant in this appeal.
15. It is also submitted that when the first writ petition, that is,
WP(C) No. 29 of 2022 was filed, the learned Single Bench in its order
dated 16.02.2022 had directed the respondent/JHADC to run the check
gate at Mookyndur departmentally. Even in its final order dated
26.09.2022 the respondent/JHADC was directed to continue to run the
said check gate departmentally. It was only when it is found that running
of the check gate at Mookyndur is not feasible anymore because of
increased traffic and VIP movement as well as instructions received from
the State Government to keep traffic movement on highways
unobstructed that the respondent/JHADC had decided to lease a larger
plot of land at Khliehtyrshi for the purpose of shifting of the said check
gate from Mookyndur to Khliehtyshi. This decision was confirmed by the
Executive Committee in its meeting held on 29.11.2022.
16. Yet again, the letter dated 26.10.2022 issued upon the appellant
requiring her to arrange a suitable land with laybye for the purpose of
operation of check station at Mookyndur cannot be construed as a letter
of appointment and as such no right has accrued to the
appellant/petitioner by the said letter. In fact, when by letter dated
24.11.2022 the appellant had offered such land for setting up of the check
gate, it was discovered that the land was the same land offered by the
second highest bidder, Shri. Rudolf G. Kyndiah at the time of submission
of his bid in the NIT. Furthermore, on a legal notice being issued by the
said Shri. Rudolf G. Kyndiah dated 28.11.2022 which was duly
considered by the Executive Committee on 14.03.2022 the EC in such
meeting has decided to recall its earlier decision which was
communicated to the appellant vide letter dated 26.10.2022, treating the
same as cancelled. Since under the terms of the NIT dated 18.10.2021
land was supposed to be provided by the agent at his/her cost, the
decision of the Executive Committee to shift the location of the check
gate from Mookyndur to Khliehtyrshi can only be construed to mean that
the NIT has been impliedly cancelled and therefore, the appellant has no
vested right to be appointed as Agent to run the check station either at
Mookyndur or at Khliehtyrshi. In this regard, the learned Sr. counsel has
also submitted that the appellant in this appeal has not challenged the
decision of the JHADC to shift the check station from Mookyndur to
Khliehtyrshi.
17. The learned Sr. counsel has submitted that in the impugned
judgment and order dated 11.09.2023 the learned Single Bench having
considered all aspects of the matter especially the fact that the said check
station is now run departmentally by the JHADC at Khliehtyrshi, though
it found that the decision-making process by the respondent/JHADC is
flawed, however, the relief as prayed for by the appellant/petitioner in no
longer available to be granted. The fact that cost of ₹ 2,00,000/- (rupees
two lakhs) only was imposed upon the respondent/JHADC there is no
infirmity found in the impugned judgment and order dated 11.09.2023.
18. This Court has carefully considered the submission and
contention raised by the respective parties in this appeal and has also
perused the impugned judgment and order dated 11.09.2023. What is
required to be determined is whether the said impugned judgment and
order was passed after taking into consideration all relevant factors.
19. Facts as indicated hereinabove not required to be repeated this
Court is able to discern that the NIT in question has reached the stage of
"Offer" wherein the appellant who was the highest bidder was on the
verge to being appointed as the Agent of the said Check Station provided
she fulfilled certain conditions, particularly preparation of a suitable land
with laybye facility, which according to her was duly complied with.
20. The letter dated 16.03.2023 whereby the offer letter dated
26.10.2022 was recalled has in no way mentioned any fault or
shortcomings on the part of the appellant/tenderer/highest bidder as far as
fulfilment of the condition imposed is concerned. The only reason cited
was the consideration of the contents of the legal notice issued by one of
the failed tenderer, wherein it was said that the site offered by the
appellant/petitioner/tenderer was not the original site cited in her tender
documents and this might lead to fresh round of litigation.
21. This issue was dealt with in the impugned judgment and order
when the locus of the person who had issued the said legal notice was
found to be lacking inasmuch as he is no longer part of the proceedings
and could not have challenged the offer made to the appellant/petitioner.
The outcome of such observation would only mean that the offer letter
dated 26.10.2022 is still valid and the said recall letter dated 16.03.2023
on the reasons so stated ought not to have been issued as issuance of the
same only reflects the intention of the respondents which is arbitrary and
malafide in nature.
22. What is noticed in the proceedings before the JHADC is that no
wrong has been committed by the appellant/petitioner as far as her
participation in the tender process is concerned, the letter of offer dated
26.10.2022, albeit with certain conditions imposed, such conditions to be
fulfilled within two month from 26.10.2022, ought to have been allowed
to run its course and the final decision to award the contract to be made
after the two months' period allowed to the appellant has expired,
however, as is evident, even before the two months' period is over, the
respondent/JHADC has already executed an agreement with Smti. Neh
Rymbai on 18.11.2022, which date is well before the expiry of the two
months' period, for lease of the land at Khliehtyrshi for the purpose of
running the check station instead of the same to function from
Mookyndur. This action smacks of arbitrariness and a predetermined
intention not to award the contract to the appellant, However, the learned
Single Bench has considered such development as one which has changed
the entire complexion of the case giving rise to a fresh cause of action, the
finding as such, was on account of the complete factual situation not
being brought to its notice since the action of the respondent/JHADC to
shift its location from Mookyndur to Khliehtryshi has not been explained
to the appellant/petitioner in the letter dated 16.03.2023. Therefore, it is
safe to say that the decision of the respondents/JHADC to shift the said
location of the check station is not part of the tender process or one of the
conditions in the said NIT dated 18.10.2021. In this regard, the case of
K.D. Sharma(supra) cited by the appellant at paras 34 and 36 speaks of
the application of the principle of "He who comes before the court must
come with a clean hand". The same is equally true and is applicable to all
the parties to the lis. The respondent/JHADC as pointed out has failed to
disclose the facts as regard the execution of the said agreement dated
18.11.2022 and could therefore not be eligible for any relief from the
court.
23. In the case of Tata Cellular(supra) at para 70 the Apex Court
has observed that the principles of judicial review would apply to the
exercise of contractual powers by Government bodies in order to prevent
arbitrariness or favouritism. At para 77 of the same judgment, it was held
that the duty of the court is to confine itself to the question of legality as
to whether a decision-making authority exceeded its power, committed an
error of law, committed a breach of the rule of natural justice, acted
unreasonably as a tribunal and finally whether such authority has abused
its powers. In the light of such observation, the factual matrix of the case
of the parties herein would reveal that the respondent/JHADC had clearly
adopted a bias attitude and conduct as far as the right of the appellant to
be considered for allotment of the said contract is concerned. Without
concluding the tender process, the shifting of the said check station from
Mookyndur to Khliehtyrshi is an act of illegality on the part of the said
respondents.
24. The objection of the respondent/JHADC on the issue of
applicability of the principle of resjudicata ought to have been taken up
before the learned Single Bench which was not done so. In any case, this
Court finds that there is no question of resjudicata involved in the case as
the appellant/petitioner had approached the writ court on a fresh cause of
action, particularly being aggrieved by the recall letter dated 16.03.2023.
25. This Court is in agreement with the findings of the learned
Single Bench as far as the arbitrary conduct of the respondent/JHADC is
concerned thus depriving the appellant/petitioner her right to be
considered for allotment of the contract, however as to the observation
and finding that the tender process in question was abandoned upon the
decision of the respondent/JHADC to shift the location from Mookyndur
to Khliehtyrshi, with no materials on record available and more so on the
admission of the respondent/JHADC that there is no record of the tender
process being abandoned, as observed above, it stands to reason that the
same is still subsisting. The observation thus made is to be faulted herein.
In view thereof, the finding of the learned Single Bench that the tender
process was abandoned upon the decision of the respondent/JHADC to
shift the location stands interfered with.
26. As far as the imposition of cost in concerned, it is the
submission of the appellant that the same though issued by the
respondent/JHADC by way of a cheque, the said cheque was returned,
therefore this aspect of the matter does not require any specific
consideration or direction.
27. In the light of the above, this Court finds that since the said
tender process is not yet concluded, the appellant is to be given a fair
opportunity of being considered for running of the said check station at
Mookyndur, unless decided otherwise by the respondent authorities in
accordance with law at the conclusion of the said tender process.
28. It is to be noted that only relevant authorities cited by the parties
have been taken into consideration.
29. To the extent indicated above, this appeal is allowed. No costs.
(B. Bhattacharjee) (W. Diengdoh)
Judge Judge
Meghalaya
08.02.2024
"Tiprilynti-PS"
