Uttarakhand High Court

25Th September vs State Of Uttarakhand & Others on 25 September, 2023

             IN THE HIGH COURT OF UTTARAKHAND
                                  AT NAINITAL
                   HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                            AND
                      HON'BLE SRI JUSTICE RAKESH THAPLIYAL

                 WRIT PETITION (M/S) NO. 2668 OF 2021
                          25TH SEPTEMBER, 2023
Jaswant Singh                                                  .....Petitioner.
                                        Versus

State of Uttarakhand & others                                  ....Respondents.

Counsel for the Petitioner : Mr. Jitendra Chaudhary and Mr. Suhail Ahmed Siddiqui, learned counsels.

Counsel for the Respondent No.1 : Mr. Amarendra Pratap Singh, learned Additional Advocate General.

Counsel for the Respondent No.5 : Mr. S.S. Chauhan and Mr. Pradeep Joshi, learned counsels.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

We have heard learned counsels and proceed to

dispose of this writ petition.

2. The petitioner has preferred the present writ

petition to seek the following reliefs:-

"(i) Issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned tender notice no.6130/Jalasaya/ 2021-22 Dehradun dated 18th November 2021 (Annexure-1) along with corrigendum dated 02nd December 2021 (Annexure-2) issued by the respondent no.2 i.e. Secretary Uttarakhand State Matasaya Palak Vikas Abhikaran Dehradun.

(ii) Issue a writ, order or direction in the nature of mandamus, directing and commanding the respondent fisheries board to the effect that it shall issue fresh tender notice in respect to Baur & Haripura Reservoir situated in District Udham Singh Nagar for awarding fishing contract for

next 05 years only in accordance with the Uttarakhand State Water Management, Fisheries and Angling Rules 2013".

3. The case of the petitioner is that respondent no.2

issued the impugned tender Notice No. 6130/Jalasaya/ 2021-

22 Dehradun dated 18th November 2021, to which a

corrigendum was issued on 02nd December 2021. The said

tender invited bid from the interested bidders for providing

fishing rights at Baur & Haripura Reservoir in District Udham

Singh Nagar. The tenure of the contract was stated to be for

ten years, i.e. from 2021-22 to 2030-31. The tabulation

contained in the tender, which, inter alia, described the

period of tender reads as follows:-


 ०    जलाशय        जनपद /       ठे के की       आरि त      बयाने की    ऑनलाईन
      का नाम        म ल          अविध          धनरािश     धनरािश     िनिवदा जमा
                                                                       करने की
                                                                       अ म
                                                                        ितिथ
1.   बौर     एवं उधमिसंहनगर     वष      ₹36.08 लाख      ₹3.608 लाख   िदनां क   :
     ह रपुरा     /    कुमायूँ   2021-                                6.12.2021
     जलाशय       म ल            22से वष                              समय: सायं
2.   96 कज                      2030-   ₹36.00 लाख      ₹3.60 लाख    05 बजे
                                31 तक
                                दस वष
                    योग                 ₹72.08 लाख      ₹7.208 लाख

4. The petitioner was aggrieved by the said tender on

the ground that the tenure of the contract under the tender,

which was stated to be ten years, was contrary to the rules

framed by the State Government under the Uttarakhand

Fisheries Act, 2003. The said Act, in Section 3(1), empowers

the State Government to make the Rules for the purposes

mentioned in the said Act. In pursuance of Section 3(1) of the

Act, the State Government has framed the Uttarakhand

Fisheries Rules, 2013, on 25.10.2013. Rule 11 of the said

Rules, inter alia, reads as follows:-

"11. मैदानी े की निदयों के ठे कों की अविध पांच वष होगी और इसकी गणना आगामी 1 जुलाई से 30 जून तक की अविध को स िलत कर की जायेगी। थम वष म यह अविध ीकृित की तारीख से ार एवं 30 जून को समा समझी जायेगी। ीकृत िनिवदा मू म ितवष 10 ितशत की वृ आगिणत की जायेगी और तदनुसार िनिवदादाता ारा संदेय होगी।"

(emphasis supplied)

5. In the same Rules, Appendix 6(1) again reiterates

the same position in the following words:-

० जल े का अनु ािवत परिमट / बीट आवं टन िनषेव िशकारमाही के िनिष नाम िशकारमाही लाईसे की िविध अविध े का थान िविध वै धता िनिवदा

अविध मा म से

9. मैदानी े की सम मा पाँच वष खु ली नीलामी 01 जु लाई से 1. कुंभ मे ला निदयां िशकारमाही के आधार पर 30 िसत र े एवं अ िविधयाँ तक म धािमक थलों मे ला आखे ट के आस -

                                                                                  पर          पूण पास
                                                                                      ितब           2.      िच     त
                                                                                  रहे गा।            जनन े ।


                                                                                  (emphasis supplied)

6. Upon issuance of notices, respondent no.1 and

respondent nos.2 to 4 have filed their counter-affidavits. The

stand taken by the State in their counter-affidavit is that, the

State had issued a Government Order on 18.11.2021- which

also happens to be a date on which the tender, in question,

was issued, thereby fixing the tenure of government

contracts for fishing rights as ten years. Clause 25 of the

Government Order dated 18.11.2021 reads as follows:-

"25- ठे के की अविध दस (10) वष होगी जबिक थमतः ठे केदार के साथ पां च (05) वष हे तु अनुबंध िन ािदत िकया जायेगा अथात अनुबंध की अविध 05 वष होगी। यिद ठे केदार / सिमित ारा समी ा से पूव या समी ा के बाद म ाविध म ठे का छोड़ िदया जाता है तो अिभकरण को यी िव ीय हॉिन के सापे ठे केदार ारा जमा धरोहर धनरािश को ाज सिहत ज कर िलया जाएगा और ठे केदार के िव अवशे ष धनरािश का समायोजन उसकी बक गार ी से िकया जाएगा।" (emphasis supplied)

7. We have inquired from learned counsel appearing

for the State, as to how the said Government Order could

have been issued in the teeth of Rule 11(1) of the 2013

Rules, framed by the State Government, under Section 3(1)

of the Fisheries Act, aforesaid. There is no answer

forthcoming.

8. Pertinently, the Government Order dated

18.11.2021 does not purport to be an amendment to the

Fisheries Rules, 2013, since the said Government Order does

not even purport to have been issued in exercise of the rule

making power of the State. The Fisheries Act, 2003 clearly

sets out the procedure prescribed for the purpose of framing

of Rules under Section 3(1). Section 3(2) states that the

State Government may, by notification in the official gazette,

apply the Rules. The Government Order dated 18.11.2021 is

not claimed to have been gazetted. Moreover, Section 3(5)

provides that every rule made under the Act shall be laid, as

soon as may be after it is made, before the Legislative

Assembly while it is in session for a total period of not less

than fourteen days which may be comprise in one session or

in two or more successive sessions. It is, therefore, clear that

the Government Order dated 18.11.2021, relied upon by the

respondents to justify the issuance of tender for a period of

ten years, is contrary to the existing Uttarakhand Fisheries

Rules, 2013, and in particular, contrary to Rule 11(1) thereof.

The said Government Order, being in the nature of executive

instructions, cannot override the statutory rules.

Consequently, neither the Government Order dated

18.11.2021 can be sustained, nor the action taken

thereunder while issuing the tender, in question.

9. We find the action taken by the respondent- State,

even otherwise, to be completely mindless, for the reason

that the same does not appear to be financially prudent on

the part of the State. It is not the stand of the respondent-

State, that the contractor, who is granted the fishing rights,

has to make a substantial capital investment at the beginning

of the contract, and therefore, the period of the contract

needs to be increased to enable the successful contract to

recovery its capital expenditure. Grant of contracts for such

long periods of time as ten years, is bound to result in loss of

revenue for the State in the long run, since the inflation

would not be factored in when contracts are awarded for such

large periods of time.

10. We may also take note of the order dated

05.01.2022, passed by this Court, wherein the Court had

observed as follows:-

"Having regard to the facts & circumstances of the case, it shall be open to the respondents to award contract to the highest bidder, however, extension of contract beyond 5 years shall be subject to final outcome of the writ petition.

As prayed, four weeks' time is granted to learned counsel for the respondent(s) for filing counter affidavit(s). Two weeks' time, thereafter, is allowed for filing rejoinder affidavit.